LEASE AGREEMENT BETWEEN
CHATEAU PLAZA HOLDINGS, L.P.,
AS LANDLORD, AND
RED MOUNTAIN RESOURCES, INC.,
AS TENANT
DATED MAY 23, ▇▇▇▇
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BASIC LEASE INFORMATION
Lease Date: May 23, 2011
Landlord: CHATEAU PLAZA HOLDINGS, L.P., a Delaware limited partnership
Tenant: RED MOUNTAIN RESOURCES, INC., a Florida corporation
Premises: Suite No. 900, containing 4,383 rentable square feet, in the
office building commonly known as Chateau Plaza (the
"Building"), and whose street address is ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The Premises are outlined on
the plan attached to the Lease as Exhibit A. The land on
which the Project is located (the "Land") is described on
Exhibit B. The term "Project" shall collectively refer to
the Building, the Land and the driveways, parking
facilities, and similar improvements and easements
associated with the foregoing or the operations thereof.
Term: 64 full calendar months, plus any partial month from the
Commencement Date to the end of the month in which the
Commencement Date falls, starting on the Commencement Date
and ending at 5:00 p.m. local time on the last day of the
64th full calendar month following the Commencement Date,
subject to adjustment and earlier termination as provided in
the Lease.
Commencement The earlier of (a) the date on which Tenant occupies any
Date: portion of the Premises and begins conducting business there
-in, or (b) June 1, 2011.
Basic Rent: Subject to the abatement of Basic Rent provided below, Basic
Rent shall be the following amounts for the following
periods of time:
Time Periods Annual Basic Rent Rate Per Rentable Monthly Basic Rent
Square Foot in the Premises
Commencement Date - $24.50 $8,948.63
September 30, 2012
October 1, 2012 - $25.00 $9,131.25
September 30, 2013
October 1, 2013 - $25.50 $9,313.88
September 30, 2014
October 1, 2014 - $26.00 $9.496.50
September 30, 2015
October 1, 2015 - $26.50 $9,679.13
September 30, 2016
Basic Rent shall be abated during the first four calendar
months of the Term, e.g., if the Commencement Date is May
25, 2011, Basic Rent shall be abated until September 24,
2011. Commencing with the first day after the end of the
abatement period referred to above, Tenant shall make Basic
Rent payments for any remaining partial calendar month and
on the first day of the first full calendar month thereafter
shall make Basic Rent payments as otherwise provided in this
Lease. Notwithstanding such abatement of Basic Rent (a) all
other sums due under this Lease, including Additional Rent
and parking rent shall be payable as provided in this Lease,
and (b) any increases in Basic Rent set forth in this Lease
shall occur on the dates scheduled therefor.
Security Deposit: $9,679.13.
Additional Rent: Tenant's Proportionate Share of Excess Operating Costs,
Excess Taxes and Electrical Costs.
Rent: Basic Rent, Additional Rent, and all other sums that Tenant
may owe to Landlord or otherwise be required to pay under
the Lease.
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Permitted Use: General office use in compliance with Section 9 of the Lease.
Tenant's 2.55%, which is the percentage obtained by dividing (a) the
Proportionate number of rentable square feet in the Premises as stated
Share: above by (b) the 172,139 rentable square feet in the Project.
Landlord and Tenant stipulate that the number of rentable
square feet in the Premises and in the Project set forth
above is conclusive and shall be binding upon them, except as
provided in this Lease.
Base Year: The calendar year 2011.
Initial
Liability $1,000,000 per occurrence in primary coverage, with an
additional $3,000,000 in umbrella coverage.
Insurance Amount:
Tenant's Address: Prior to Commencement Date: Following Commencement Date:
Red Mountain Resources, Inc. Red Mountain Resources, Inc.
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Attention: [To be determined
pursuant to E hereto.]
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Telephone: [To be determined
pursuant to Exhibit E
hereto.]
Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Facsimile: [To be determined
pursuant to Exhibit E
hereto.]
Landlord's
Address: For all Notices: With a copy to:
Chateau Plaza Holdings, L.P. Chateau Plaza Holdings, L.P.
c/o Stream Dallas Office, L.P. c/o JPMorgan Asset Management
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Attention: Property Manager Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 214.220.2763 Facsimile: 212.642.2264
The foregoing Basic Lease Information is incorporated into and made a
part of the Lease identified above. If any conflict exists between any
Basic Lease Information and the Lease, then the Lease shall control.
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TABLE OF CONTENTS
Page No.
1. DEFINITIONS AND BASIC PROVISIONS......................................1
2. LEASE GRANT...........................................................1
3. TENDER OF POSSESSION..................................................1
4. RENT..................................................................1
4.1 Payment......................................................1
4.2 Additional Rent..............................................2
4.3 Cap on Excess Operating Costs................................4
5. DELINQUENT PAYMENT; HANDLING CHARGES..................................4
6. SECURITY DEPOSIT......................................................4
7. LANDLORD'S OBLIGATIONS................................................5
7.1 Services.....................................................5
7.2 Excess Utility Use...........................................5
7.3 Restoration of Services; Abatement...........................6
7.4 Repair and Maintenance by Landlord...........................6
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.......................6
8.1 Improvements; Alterations....................................6
8.2 Repair and Maintenance by Tenant.............................7
8.3 Performance of Work..........................................7
8.4 Mechanic's Liens.............................................7
9. USE...................................................................8
10. ASSIGNMENT AND SUBLETTING.............................................9
10.1 Transfers....................................................9
10.2 Consent Standards............................................9
10.3 Request for Consent..........................................9
10.4 Conditions to Consent.......................................10
10.5 Attornment by Subtenants....................................10
10.6 Cancellation................................................10
10.7 Additional Compensation.....................................10
10.8 Permitted Transfers.........................................10
11. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY...........................11
11.1 Tenant's Insurance..........................................11
11.2 Landlord's Insurance........................................12
11.3 No Subrogation; Waiver of Property Claims...................12
11.4 Indemnity...................................................13
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE............13
12.1 Subordination...............................................13
12.2 Attornment..................................................13
12.3 Notice to Landlord's Mortgagee..............................13
12.4 Landlord's Mortgagee's Protection Provisions................14
12.5 Modification of Lease.......................................14
13. RULES AND REGULATIONS................................................14
14. CONDEMNATION.........................................................14
14.1 Total Taking................................................14
14.2 Partial Taking - Tenant's Rights............................14
14.3 Partial Taking - Landlord's Rights..........................14
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14.4 Award.......................................................15
14.5 Restoration.................................................15
15. FIRE OR OTHER CASUALTY...............................................15
15.1 Repair Estimate.............................................15
15.2 Tenant's Rights.............................................15
15.3 Landlord's Rights...........................................15
15.4 Repair Obligation...........................................15
15.5 Abatement of Rent...........................................15
16. PERSONAL PROPERTY TAXES..............................................16
17. EVENTS OF DEFAULT....................................................16
17.1 Payment Default.............................................16
17.2 Abandonment.................................................16
17.3 Estoppel; Subordination; Financial Reports..................16
17.4 Insurance...................................................16
17.5 Mechanic's Liens............................................16
17.6 Other Defaults..............................................16
17.7 Insolvency..................................................16
18. REMEDIES.............................................................17
18.1 Termination of Lease........................................17
18.2 Termination of Possession...................................17
18.3 Perform Acts on Behalf of Tenant............................17
18.4 Suspension of Services......................................17
18.5 Alteration of Locks.........................................17
19. PAYMENT BY TENANT; NON-WAIVER; CUMULATIVE REMEDIES; MITIGATION OF
DAMAGE...............................................................17
19.1 Payment by Tenant...........................................17
19.2 No Waiver...................................................18
19.3 Cumulative Remedies.........................................18
19.4 Mitigation of Damage........................................18
20. LANDLORD'S LIEN......................................................18
21. SURRENDER OF PREMISES................................................19
22. HOLDING OVER.........................................................19
23. CERTAIN RIGHTS RESERVED BY LANDLORD..................................20
23.1 Building Operations.........................................20
23.2 Security....................................................20
23.3 Prospective Purchasers and Lenders..........................20
23.4 Prospective Tenants.........................................20
24. SUBSTITUTION SPACE...................................................20
25. MISCELLANEOUS........................................................21
25.1 Landlord Transfer...........................................21
25.2 Landlord's Liability........................................21
25.3 Force Majeure...............................................21
25.4 Brokerage...................................................21
25.5 Estoppel Certificates.......................................21
25.6 Notices.....................................................21
25.7 Separability................................................22
25.8 Amendments; Binding Effect; No Electronic Records...........22
25.9 Counterparts................................................22
25.10 Quiet Enjoyment.............................................22
25.11 No Merger...................................................22
25.12 No Offer....................................................22
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5.13 Entire Agreement............................................22
25.14 Waiver of Jury Trial........................................22
25.15 Governing Law...............................................23
25.16 Recording...................................................23
25.17 Water or Mold Notification..................................23
25.18 Joint and Several Liability.................................23
25.19 Financial Reports...........................................23
25.20 Landlord's Fees.............................................23
25.21 Telecommunications..........................................23
25.22 Confidentiality.............................................24
25.23 Authority...................................................24
25.24 Hazardous Materials.........................................24
25.25 List of Exhibits............................................24
25.26 Determination of Charges....................................25
25.27 Prohibited Persons and Transactions.........................25
25.28 Waiver of Consumer Rights...................................25
25.29 Building Renovations........................................25
25.30 Common Area Amenities.......................................25
25.31 UBTI........................................................26
25.32 Cross Default...............................................26
25.33 Reserved Rights.............................................26
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LIST OF DEFINED TERMS
Page No.
Additional Rent................................................................i
Affiliate......................................................................1
Base Year.....................................................................ii
Basic Lease Information........................................................1
Basic Rent.....................................................................i
Building.......................................................................i
Building's Structure...........................................................1
Building's Systems.............................................................1
Casualty......................................................................15
Code..........................................................................26
Collateral....................................................................19
Commencement Date..............................................................i
Common Area Amenities.........................................................26
Controllable Operating Costs...................................................4
Damage Notice.................................................................15
Default Rate...................................................................4
Disabilities Acts..............................................................8
Electrical Costs...............................................................3
Estimated Delivery Date........................................................1
Event of Default..............................................................16
Excess Operating Costs.........................................................2
Excess Taxes...................................................................3
GAAP..........................................................................11
Hazardous Materials...........................................................24
HVAC...........................................................................5
including......................................................................1
Initial Liability Insurance Amount............................................ii
Land...........................................................................i
Landlord.......................................................................i
Landlord's Mortgagee..........................................................13
Law............................................................................1
Laws...........................................................................1
Lease..........................................................................1
Lease Date.....................................................................i
Loss..........................................................................13
Mortgage......................................................................13
OFAC..........................................................................25
Operating Costs................................................................2
Parking Area.................................................................G-1
Permitted Transfer............................................................11
Permitted Transferee..........................................................11
Permitted Use.................................................................ii
Premises.......................................................................i
Prevailing Rental Rate.......................................................H-1
Primary Lease.................................................................13
Project........................................................................i
Reconciliation Statement.......................................................4
Regulations...................................................................26
Release.......................................................................25
Renovations...................................................................25
Rent..........................................................................ii
Repair Period.................................................................15
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Security Deposit...............................................................i
Substitute Tenant.............................................................18
Taking........................................................................14
Tangible Net Worth............................................................11
Taxes..........................................................................3
Telecommunications Services...................................................24
Tenant.........................................................................i
Tenant Party...................................................................1
Tenant's Off-Premises Equipment................................................1
Tenant's Proportionate Share..................................................ii
Term...........................................................................i
Transfer.......................................................................9
UCC...........................................................................19
Visible Premises...............................................................7
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LEASE
This Lease Agreement (this "Lease") is entered into as of the Lease
Date between Landlord and Tenant (as each such term is defined in the Basic
Lease Information).
1. Definitions and Basic Provisions. The definitions and basic provi-
sions set forth in the Basic Lease Information (the "Basic Lease Information")
are incorporated herein by reference for all purposes. Additionally, the
following terms shall have the following meanings when used in this Lease:
"Affiliate" means any person or entity which, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with the party in question; "Building's Structure" means the Building's
roof and roof membrane, elevator shafts, footings, foundations, structural
portions of load-bearing walls, structural floors and subfloors, structural
columns and beams, and curtain walls; "Building's Systems" means the Building's
HVAC, life-safety, plumbing, electrical, mechanical and elevator systems;
"including" means including, without limitation; "Laws" means all federal, state
and local laws, ordinances, building codes and standards, rules and regulations,
all court orders, governmental directives, and governmental orders and all
interpretations of the foregoing, and all restrictive covenants affecting the
Project, and "Law" means any of the foregoing; "Tenant's Off-Premises Equipment"
means any of Tenant's equipment or other property that may be located on or
about the Project (other than inside the Premises); and "Tenant Party" means any
of the following persons: Tenant; any assignees claiming by, through, or under
Tenant; any subtenants claiming by, through, or under Tenant; and any of their
respective agents, contractors, employees, licensees, guests and invitees.
2. Lease Grant. Subject to the terms of this Lease, Landlord
leases to Tenant, and Tenant leases from Landlord, the Premises.
3. Tender of Possession. Landlord and Tenant presently anticipate that
possession of the Premises will be tendered to Tenant in the condition required
by this Lease on or about June 1, 2011 (or, if later, five days following
Tenant's full execution and delivery of this Lease to Landlord, the "Estimated
Delivery Date"). If Landlord is unable to tender possession of the Premises in
such condition to Tenant by the Estimated Delivery Date, then (a) the validity
of this Lease shall not be affected or impaired thereby, (b) Landlord shall not
be in default hereunder or be liable for damages therefor, and (c) Tenant shall
accept possession of the Premises when Landlord tenders possession thereof to
Tenant. By occupying the Premises, Tenant shall be deemed to have accepted the
Premises in their condition as of the date of such occupancy, subject to the
performance of punch-list items that remain to be performed by Landlord, if any.
Prior to occupying the Premises, Tenant shall execute and deliver to Landlord a
letter substantially in the form of Exhibit E hereto confirming (1) the
Commencement Date and the expiration date of the initial Term, (2) that Tenant
has accepted the Premises, and (3) that Landlord has performed all of its
obligations with respect to the Premises (except for punch-list items specified
in such letter); however, the failure of the parties to execute such letter
shall not defer the Commencement Date or otherwise invalidate this Lease. Entry
into the Premises by any Tenant Party prior to the Commencement Date shall be
subject to all of the provisions of this Lease excepting only those requiring
the payment of Basic Rent and Additional Rent.
4. Rent.
4.1 Payment. Tenant shall timely pay to Landlord Rent,
without notice, demand, deduction or set off (except as otherwise expressly
provided herein), by good and sufficient check drawn on a national banking
association at Landlord's address provided for in this Lease or, at Landlord's
election, by wire transfer or as otherwise specified by Landlord and shall be
accompanied by all applicable state and local sales or use taxes. The
obligations of Tenant to pay Rent to Landlord and the obligations of Landlord
under this Lease are independent obligations. Basic Rent, adjusted as herein
provided, shall be payable monthly in advance. The first monthly installment of
Basic Rent, in the amount payable under this Lease after the end of any Basic
Rent abatement period provided in the Basic Lease Information, is due upon
execution of this Lease by Tenant; thereafter, Basic Rent shall be payable on
the first day of each calendar month, subject to any Basic Rent abatement
provision in the Basic Lease Information. The monthly Basic Rent for any partial
month at the beginning of the Term shall equal the product of 1/365 of the
annual Basic Rent in effect during the partial month and the number of days in
the partial month, and such Basic Rent payment is due upon execution of this
Lease by Tenant; however, if the Commencement Date is not a fixed date that is
ascertainable as of the Lease Date, then such Basic Rent payment for any
fractional calendar month at the beginning of the Term shall be due by Tenant on
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the Commencement Date. Payments of Basic Rent for any fractional calendar month
at the end of the Term shall be similarly prorated. Tenant shall pay to Landlord
monthly installments of Additional Rent in advance on the first day of each
calendar month and otherwise on the same terms and conditions described above
with respect to Basic Rent. Unless a shorter time period is specified in this
Lease, all payments of miscellaneous Rent charges hereunder (that is, all Rent
other than Basic Rent and Additional Rent) shall be due and payable within 30
days following Landlord's delivery to Tenant of an invoice therefor.
4.2 Additional Rent.
4.2.1 Excess Operating Costs. Tenant shall pay to Land
-lord Tenant's Proportionate Share of Excess Operating Costs. As used herein,
"Excess Operating Costs" means any increase in Operating Costs (defined below)
for each year and partial year of the Term over the Operating Costs incurred
during the Base Year. Landlord may make a good faith estimate of Excess
Operating Costs to be due by Tenant for any calendar year or part thereof during
the Term. During each calendar year or partial calendar year of the Term after
the Base Year, Tenant shall pay to Landlord, in advance concurrently with each
monthly installment of Basic Rent, an amount equal to Tenant's estimated Excess
Operating Costs for such calendar year or part thereof divided by the number of
months therein. From time to time, Landlord may estimate and re-estimate the
Excess Operating Costs to be due by Tenant and deliver a copy of the estimate or
re-estimate to Tenant. Thereafter, the monthly installments of Excess Operating
Costs payable by Tenant shall be appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in question, Tenant shall
have paid all of the Excess Operating Costs as estimated by Landlord. Any
amounts paid based on such an estimate shall be subject to adjustment as herein
provided when actual Operating Costs are available for each calendar year.
4.2.2 Operating Costs Defined. The term "Operating
Costs" means all costs, expenses and disbursements (subject to the limitations
set forth below) that Landlord incurs in connection with the ownership,
operation, and maintenance of the Project and performing Landlord's obligations
under this Lease, in each case, determined in accordance with sound accounting
principles consistently applied, including the following costs: (A) wages and
salaries of all on-site employees at or below the grade of senior building
manager engaged in the operation, maintenance or security of the Project
(together with Landlord's reasonable allocation of expenses of off-site
employees at or below the grade of senior building manager who perform a portion
of their services in connection with the operation, maintenance or security of
the Project including accounting personnel), including taxes, insurance and
benefits relating thereto; (B) all supplies and materials used in the operation,
maintenance, repair, replacement, and security of the Project; (C) costs for
improvements made to the Project which, although capital in nature, are expected
to reduce the normal operating costs (including all utility costs) of the
Project, as amortized using a commercially reasonable interest rate over the
time period reasonably estimated by Landlord to recover the costs thereof taking
into consideration the anticipated cost savings, as determined by Landlord using
its good faith, commercially reasonable judgment, as well as capital
improvements made in order to comply with any Law hereafter promulgated by any
governmental authority, or any amendment to or any interpretation hereafter
rendered with respect to any existing Law that have the effect of changing the
legal requirements applicable to the Project from those currently in effect, as
amortized using a commercially reasonable interest rate over the useful economic
life of such improvements as determined by Landlord in its reasonable
discretion; (D) cost of all utilities, except Electrical Costs and the cost of
other utilities reimbursable to Landlord by the Project's tenants other than
pursuant to a provision similar to this Section 4.2.2; (E) insurance expenses,
including the cost of any deductibles; (F) repairs, replacements, and general
maintenance of the Project; (G) fair market rental and other costs with respect
to the management office for the Project; and (H) service, maintenance and
management contracts and fees (payable to Landlord, Landlord's affiliate or a
third-party management company; provided that any costs paid to Landlord or
Landlord's affiliate for management services shall exclude amounts paid in
excess of the competitive rates for management services of comparable quality
rendered by persons or entities of similar skill, competence and experience) for
the operation, maintenance, management, repair, replacement, or security of the
Project (including alarm service, window cleaning, janitorial, security,
landscape maintenance and elevator maintenance).
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Operating Costs shall not include costs for (i) capital improvements made to the
Project, other than capital improvements described in Section 4.2.2(C) and
except for items which are generally considered maintenance and repair items,
such as painting and wall covering of common areas, replacement of carpet or
other floor coverings in elevator lobbies and common areas, and the like; (ii)
repair, replacements and general maintenance paid by proceeds of insurance or by
Tenant or other third parties; (iii) interest, amortization or other payments on
loans to Landlord; (iv) depreciation; (v) leasing commissions; (vi) legal
expenses for services, other than those that benefit the Project tenants
generally (e.g., tax disputes); (vii) renovating or otherwise improving space
for occupants of the Project or vacant leasable space in the Project; (viii)
Taxes; and (ix) federal income taxes imposed on or measured by the income of
Landlord from the operation of the Project. Operating Costs for the Base Year
only shall not include costs incurred due to extraordinary circumstances or
other non-recurring charges, including market-wide labor rate increases due to
boycotts and strikes; utility rate increases due to extraordinary circumstances
or other non- recurring charges, including conservation surcharges, boycotts,
embargos or other shortages; insurance deductibles; or amortized costs relating
to capital improvements.
4.2.3 Excess Taxes; Taxes Defined. Tenant shall also
pay Tenant's Proportionate Share of Excess Taxes. As used herein, "Excess Taxes"
means any increase in Taxes (defined below) for each year and partial year
falling within the Term over the Taxes for the Base Year. Tenant shall pay
Tenant's Proportionate Share of Excess Taxes in the same manner as provided
above for Tenant's Proportionate Share of Excess Operating Costs. If Landlord
receives a refund or abatement from a taxing authority for any portion of the
Taxes allocable to the Base Year, the Taxes for the Base Year shall be reduced
by the amount of such refund or abatement. "Taxes" means taxes, assessments, and
governmental charges or fees whether federal, state, county or municipal, and
whether they be by taxing districts or authorities presently taxing or by
others, subsequently created or otherwise, and any other taxes and assessments
(including non-governmental assessments for common charges under a restrictive
covenant or other private agreement that are not treated as part of Operating
Costs) now or hereafter attributable to the Project (or its operation),
excluding, however, penalties and interest thereon and federal and state taxes
on income. However, if the present method of taxation changes so that in lieu of
or in addition to the whole or any part of any Taxes, there is levied on
Landlord a capital tax directly on the rents or revenues received therefrom or a
franchise tax, margin tax, assessment, or charge based, in whole or in part,
upon such rents or revenues for the Project, then all such taxes, assessments,
or charges, or the part thereof so based, shall be deemed to be included within
the term "Taxes" for purposes hereof. Notwithstanding anything to the contrary
herein, Taxes shall include the Texas margin tax and/or any other business tax
imposed under Texas Tax Code Chapter 171 and/or any successor statutory
provision. Taxes shall include the costs of consultants retained in an effort to
lower taxes and all costs incurred in disputing any taxes or in seeking to lower
the tax valuation of the Project. Notwithstanding the foregoing, Taxes for the
Base Year only shall not include costs incurred due to extraordinary
circumstances or other non-recurring charges, including tax consultants and
other costs incurred by Landlord in an effort to lower the tax valuation of the
Project. For property tax purposes, Tenant waives all rights to protest or
appeal the appraised value of the Premises, as well as the Project, and all
rights to receive notices of reappraisement as set forth in Sections 41.413 and
42.015 of the Texas Tax Code. From time to time during any calendar year,
Landlord may estimate or reestimate the Excess Taxes to be due by Tenant for
that calendar year and deliver a copy of the estimate or re-estimate to Tenant.
Thereafter, the monthly installments of Excess Taxes payable by Tenant shall be
appropriately adjusted in accordance with the estimations.
4.2.4 Electrical Costs. Tenant shall also pay to Land-
lord Tenant's Proportionate Share of Electrical Costs. As used herein,
"Electrical Costs" means the cost of all electricity used by the Project, which
shall include sales, use, excise or other taxes assessed by governmental
authorities on electrical services supplied to the Project. Such amount shall be
payable in monthly installments on the Commencement Date and on the first day of
each calendar month thereafter. Each installment shall be based on Landlord's
estimate of the amount due for each month. From time to time during any calendar
year, Landlord may estimate or re-estimate the Electrical Costs to be due by
Tenant for that calendar year and deliver a copy of the estimate or re-estimate
to Tenant. Thereafter, the monthly installments of Electrical Costs payable by
Tenant shall be appropriately adjusted in accordance with the estimations.
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4.2.5 Reconciliation Statement. By April 30 of each
calendar year, or as soon thereafter as practicable, Landlord shall furnish to
Tenant a statement of Operating Costs and Electrical Costs for the previous
year, in each case adjusted as provided in Section 4.2.6, and of the Taxes for
the previous year (the "Reconciliation Statement"). If Tenant's estimated
payments of Excess Operating Costs, Excess Taxes or Electrical Costs under this
Section 4.2 for the year covered by the Reconciliation Statement exceed Tenant's
Proportionate Share of such items as indicated in the Reconciliation Statement,
then Landlord shall credit or reimburse Tenant for such excess within 30 days;
likewise, if Tenant's estimated payments of Excess Operating Costs, Excess Taxes
or Electrical Costs under this Section 4.2 for such year are less than Tenant's
Proportionate Share of such items as indicated in the Reconciliation Statement,
then Tenant shall pay Landlord such deficiency within 30 days of invoice from
Landlord.
4.2.6 Gross Up. With respect to any calendar year or
partial calendar year in which the Project is not occupied to the extent of 95%
of the rentable area thereof, or Landlord is not supplying comparable services
to 95% of the rentable area thereof, the Operating Costs and Electrical Costs
for such period which vary with the occupancy of the Project or level of service
shall, for the purposes hereof, be increased to the amount which would have been
incurred had the Project been occupied to the extent of 95% of the rentable area
thereof and Landlord had been supplying comparable services to 95% of the
rentable area thereof.
4.3 Cap on Excess Operating Costs. For purposes of calcu
-lating Tenant's Proportionate Share of Excess Operating Costs under Section
4.2.1, the maximum increase in the amount of Controllable Operating Costs
(defined below) that may be included in calculating Tenant's Proportionate Share
of Excess Operating Costs for each calendar year after the Base Year shall be
limited to 8% per calendar year on a cumulative, compounded basis; for example,
the maximum amount of Controllable Operating Costs that may be included in the
calculation of Tenant's Proportionate Share of Excess Operating Costs for each
calendar year after the Base Year shall equal the product of the Controllable
Operating Costs during the Base Year and the following percentages for the
following calendar years: 108% for the first calendar year following the Base
Year; 116.64% for the second calendar year following the Base Year; 125.97% for
the third calendar year following the Base Year, etc. However, any increases in
Operating Costs not recovered by Landlord due to the foregoing limitation shall
be carried forward into succeeding calendar years during the Term (subject to
the foregoing limitation) to the extent necessary until fully recouped by
Landlord. "Controllable Operating Costs" means all Operating Costs which are
within the reasonable control of Landlord; thus, excluding taxes, insurance,
utilities, snow removal and other weather-related costs, costs incurred to
comply with governmental requirements, and other costs beyond the reasonable
control of Landlord.
5. Delinquent Payment; Handling Charges. All past due payments required
of Tenant hereunder shall bear interest from the date due until paid at the
lesser of eighteen percent per annum or the maximum lawful rate of interest
(such lesser amount is referred to herein as the "Default Rate"); additionally,
Landlord, in addition to all other rights and remedies available to it, may
charge Tenant a late fee equal to the greater of (a) five percent of the
delinquent payment, or (b) $250, to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency. In no event,
however, shall the charges permitted under this Section 5 or elsewhere in this
Lease, to the extent they are considered to be interest under applicable Law,
exceed the maximum lawful commercial rate of interest. Notwithstanding the
foregoing, the late fee referenced above shall not be charged with respect to
the first occurrence (but not any subsequent occurrence) during any 12-calendar
month period that Tenant fails to make payment when due, until five days after
Landlord delivers written notice of such delinquency to Tenant.
6. Security Deposit. Contemporaneously with the execution of this
Lease, Tenant shall pay to Landlord the Security Deposit, which shall be held by
Landlord to secure Tenant's performance of its obligations under this Lease. The
Security Deposit is not an advance payment of Rent or a measure or limit of
Landlord's damages upon an Event of Default (as defined herein). Landlord may,
from time to time following an Event of Default and without prejudice to any
other remedy, use all or a part of the Security Deposit to perform any
obligation Tenant fails to perform hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Provided that Tenant has performed all of its obligations hereunder, Landlord
shall, within 30 days after the expiration of the Term and Tenant's surrender of
the Premises in compliance with the provisions of this Lease, return to Tenant
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the portion of the Security Deposit which was not applied to satisfy Tenant's
obligations. Notwithstanding the preceding sentence and to the extent permitted
by applicable Law, Landlord may retain the Security Deposit until such time
after the expiration of the Term that Landlord is able to reconcile and confirm
all amounts payable by Tenant under this Lease have been paid in full by Tenant
(e.g., Landlord cannot reconcile and confirm Tenant has paid Tenant's
Proportionate Share of Excess Taxes for the calendar year in which the Term
expires if Landlord has not received a Tax ▇▇▇▇ from all applicable taxing
authorities at the time of such expiration). The Security Deposit may be
commingled with other funds, and no interest shall be paid thereon. If Landlord
transfers its interest in the Premises and the transferee assumes Landlord's
obligations under this Lease, then Landlord may assign the Security Deposit to
the transferee and Landlord thereafter shall have no further liability for the
return of the Security Deposit. The rights and obligations of Landlord and
Tenant under this Section 6 are subject to any other requirements and conditions
imposed by Laws applicable to the Security Deposit.
7. Landlord's Obligations.
7.1 Services. Landlord shall use all reasonable efforts to
furnish to Tenant: (1) water at those points of supply provided for general use
of tenants of the Building; (2) the equipment to provide heated and refrigerated
air conditioning ("HVAC") as appropriate, at such temperatures and in such
amounts as are standard for comparable buildings with comparable densities and
heat loads in the vicinity of the Building (not to exceed the current HVAC
system's capacity existing as of the Lease Date); (3) janitorial service to the
Premises five days per week, other than holidays, for Building-standard
installations and such window washing as may from time to time be reasonably
required; (4) elevators for ingress and egress to the floor on which the
Premises are located, in common with other tenants, provided that Landlord may
reasonably limit the number of operating elevators during non-business hours and
holidays; and (5) electrical current for equipment that does not require more
than 110 volts and whose electrical energy consumption does not exceed normal
office usage. If Tenant desires any of the services specified in Section 7.1:
(A) at any time other than between 7:00 a.m. and 6:00 p.m. on weekdays and
between 8:00 a.m. and 1:00 p.m. on Saturdays (in each case other than holidays),
or (B) on Sundays or holidays, then such services shall be supplied to Tenant
upon the written request by Tenant delivered to Landlord's designated property
manager before 3:00 p.m. on the business day preceding such extra usage, and
Tenant shall pay to Landlord the cost of such services (which shall not be
included in Tenant's Proportionate Share of Operating Costs or Electrical Costs)
within 30 days after Landlord has delivered to Tenant an invoice therefor.
Tenant acknowledges that the cost components for providing after-hours HVAC
service to the Premises are not separately metered; accordingly, Landlord's
determination of after-normal-business-hour HVAC charges are estimates of the
costs incurred by Landlord in providing such after-hour HVAC service to Tenant.
The costs charged to Tenant for such after hour service shall include Landlord's
reasonable allocation of the costs for electricity, water, sewage, water
treatment, labor, metering, filtering, equipment depreciation, wear and tear and
maintenance to provide such service and an administrative fee of 10%.
7.2 Excess Utility Use. Landlord shall not be required to
furnish electrical power for equipment that requires more than 110 volts or
other equipment whose electrical energy consumption exceeds normal office usage.
If Tenant's requirements for or consumption of electricity exceed the
electricity to be provided by Landlord as described in Section 7.1, Landlord
shall, at Tenant's expense, make reasonable efforts to supply such service
through the then-existing feeders and risers serving the Building and the
Premises, provided the additional use of such feeders and risers caused by
Tenant's excess electrical requirements do not adversely affect Landlord's
ability to provide reasonable electrical service to the balance of the Building
(as determined by Landlord in the exercise of its reasonable discretion); and
Tenant shall pay to Landlord the cost of such service within 30 days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
verifiable method, including installation of a separate meter in the Premises
installed, maintained, and read by Landlord, at Tenant's expense. Tenant shall
not install any electrical equipment requiring special wiring or requiring
voltage in excess of 110 volts unless approved in advance by Landlord, which
approval shall not be unreasonably withheld. Tenant shall not install any
electrical equipment requiring voltage in excess of Building capacity unless
approved in advance by Landlord, which approval may be withheld in Landlord's
sole discretion. The use of electricity in the Premises shall not exceed the
capacity of existing feeders and risers to or wiring in the Premises. Any risers
or wiring required to meet Tenant's excess electrical requirements shall, upon
Tenant's written request, be installed by Landlord, at Tenant's cost, if, in
Landlord's judgment, the same are necessary and shall not cause permanent damage
to the Building or the Premises, cause or create a dangerous or hazardous
condition, entail excessive or unreasonable alterations, repairs, or
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expenses, adversely affect Landlord's ability to provide reasonable service to
the balance of the Building, or interfere with or disturb other tenants of the
Building. If Tenant uses machines or equipment in the Premises which affect the
temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and the cost thereof, including
the cost of installation, operation, use, and maintenance, in each case plus an
administrative fee of 15% of such cost, shall be paid by Tenant to Landlord
within 30 days after Landlord has delivered to Tenant an invoice therefor.
7.3 Restoration of Services; Abatement. Landlord shall use
reasonable efforts to restore any service required of it under Section 7.1 that
becomes unavailable; however, such unavailability shall not render Landlord
liable for any damages caused thereby, be a constructive eviction of Tenant,
constitute a breach of any implied warranty, or, except as provided in the next
sentence, entitle Tenant to any abatement of Tenant's obligations hereunder. If,
however, Tenant is prevented from using the Premises because of the
unavailability of any such service for a period of 15 consecutive business days
(or 10 consecutive business days because of the unavailability and the
restoration of such services is within the reasonable control of Landlord)
following Landlord's receipt from Tenant of a written notice regarding such
unavailability, and such unavailability was not caused by a Tenant Party, a
governmental directive, or the failure of public utilities to furnish necessary
services, then Tenant shall, as its exclusive remedy be entitled to a reasonable
abatement of Rent for each consecutive day (after such 15- day period or after
such 10-day period, as applicable) that Tenant is so prevented from using the
Premises.
7.4 Repair and Maintenance by Landlord. Landlord shall
maintain and repair the common areas of the Project, Building's Structure, the
core portions of the Building's Systems, the parking areas and other exterior
areas of the Project, including driveways, alleys, landscape and grounds of the
Project and utility lines in a good condition, consistent with the operation of
similar class office buildings in the market in which the Project is located,
including maintenance, repair and replacement of the exterior of the Project
(including painting), landscaping, sprinkler systems and any items normally
associated with the foregoing. All costs in performing the work described in
this Section shall be included in Operating Costs except to the extent excluded
by Section 4.2. In no event shall Landlord be responsible for alterations to the
Building's Structure required by applicable Law because of Tenant's use of the
Premises or alterations or improvements to the Premises made by or for a Tenant
Party (which alterations shall be made by Landlord at Tenant's sole cost and
expense and on the same terms and conditions as Landlord performed repairs as
described in Section 8.2 below). Notwithstanding anything to the contrary
contained herein, Landlord shall, in its commercially-reasonable discretion,
determine whether, and to the extent, repairs or replacements are the
appropriate remedial action.
8. Improvements; Alterations; Repairs; Maintenance.
8.1 Improvements; Alterations. Improvements to the Premises
shall be installed at Tenant's expense only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord, which approval shall be governed by the provisions set forth in
this Section 8.1. No alterations or physical additions in or to the Premises
(including the installation of systems furniture or other equipment or personal
property that affects or otherwise connects to the Building's Systems) may be
made without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed; however, Landlord may withhold its consent to any
alteration or addition that would (a) adversely affect (in the reasonable
discretion of Landlord) the Building's Structure or the Building's Systems
(including the Project's restrooms or mechanical rooms), or (b) affect (in the
sole discretion of Landlord) the (i) exterior appearance of the Project, (ii)
appearance of the Project's common areas or elevator lobby areas, or (iii)
provision of services to other occupants of the Project. Tenant shall not paint
or install lighting or decorations, signs, window or door lettering, or
advertising media of any type visible from the exterior of the Premises without
the prior written consent of Landlord, which consent may be withheld in
Landlord's sole and absolute discretion. All alterations, additions, and
improvements shall be constructed, maintained, and used by Tenant, at its risk
and expense, in accordance with all Laws; Landlord's consent to or approval of
any alterations, additions or improvements (or the plans therefor) shall not
constitute a representation or warranty by Landlord, nor Landlord's acceptance,
that the same comply with sound architectural and/or engineering practices or
with all applicable Laws, and Tenant shall be solely responsible for ensuring
all such compliance.
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8.2 Repair and Maintenance by Tenant. Tenant shall maintain
the Premises in a clean, safe, and operable condition, and shall not permit or
allow to remain any waste or damage to any portion of the Premises. If the
Premises include, now or hereafter, one or more floors of the Building in their
entirety, all corridors and restroom facilities located on such full floor(s)
shall be considered to be a part of the Premises. Additionally, Tenant, at its
sole expense, shall repair, replace and maintain in good condition and in
accordance with all Laws and the equipment manufacturer's suggested service
programs, all portions of the Premises (excluding the core portion of the
Building's Systems, which shall be maintained by Landlord pursuant to Section
7.4, and all branch lines of the Building's Systems exclusively serving the
Premises, which shall be maintained by Landlord at Tenant's cost and expense)
and Tenant's Off-Premises Equipment and all areas, improvements and
Tenant-installed systems, e.g., supplemental HVAC systems, exclusively serving
the Premises. With respect to any portion of the Premises visible from any
common area inside or outside of the Building (the "Visible Premises"), Tenant
shall (1) maintain such Visible Premises and furniture, fixtures and equipment
located therein in a neat and first-class condition throughout the Term and any
extension thereof, (2) not use the Visible Premises for storage, (3) obtain
Landlord's prior written consent as to the interior paint color, signage,
carpeting, furniture and equipment contained in the Visible Premises, (4)
complete within the Visible Premises any requested cleaning within one business
day after Landlord's written request therefor, and (5) complete within the
Visible Premises any requested repairs, alterations or changes within five
business days after Landlord's written request therefor. Tenant shall repair or
replace, subject to Landlord's direction and supervision, any damage to the
Project caused by a Tenant Party. If (A) Tenant fails to commence to make such
repairs or replacements within 15 days after the occurrence of such damage and
thereafter diligently pursue the completion thereof, or (B) notwithstanding such
diligence, Tenant fails to complete such repairs or replacements within 30 days
after the occurrence of such damage, then Landlord may make the same at Tenant's
cost. If any such damage occurs outside of the Premises, then Landlord may elect
to repair such damage at Tenant's expense, rather than having Tenant repair such
damage. The cost of all maintenance, repair or replacement work performed by
Landlord under this Section 8, in each case plus an administrative fee of 15% of
such cost, shall be paid by Tenant to Landlord within 30 days after Landlord has
invoiced Tenant therefor.
8.3 Performance of Work. All work described in this Section 8
shall be performed only by Landlord or by contractors and subcontractors
approved in writing by Landlord and only in accordance with plans and
specifications approved by Landlord in writing. If Landlord elects, in its sole
discretion, to supervise any work described in this Section 8, Tenant shall pay
to Landlord a construction management fee equal to 5% of the cost of such work.
Tenant shall cause all contractors and subcontractors to procure and maintain
insurance coverage naming Landlord, Landlord's Mortgagee, Landlord's property
management company and Landlord's asset management company as additional
insureds against such risks, in such amounts, and with such companies as
Landlord may reasonably require. Tenant shall provide Landlord with the
identities, mailing addresses and telephone numbers of all persons performing
work or supplying materials prior to beginning such construction and Landlord
may post on and about the Premises notices of non-responsibility pursuant to
applicable Laws. All such work shall be performed in accordance with all Laws
and in a good and workmanlike manner so as not to damage the Building (including
the Premises, the Building's Structure and the Building's Systems) and shall use
materials of a quality that is at least equal to the quality designated by
Landlord as the minimum standard for the Building, and in such manner as to
cause a minimum of interference with other construction in progress and with the
transaction of business in the Project. Landlord may designate reasonable rules,
regulations and procedures for the performance of all such work in the Building
and, to the extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when such work may be
performed. All such work which may affect the Building's Structure or the
Building's Systems must be approved by the Project's engineer of record, at
Tenant's expense and, at Landlord's election, must be performed by Landlord's
usual contractor for such work. All work affecting the roof of the Building must
be performed by Landlord's roofing contractor and no such work will be permitted
if it would void or reduce the warranty on the roof. Upon completion of any work
described in this Section 8, Tenant shall furnish Landlord with accurate
reproducible "as-built" CADD files of the improvements as constructed.
8.4 Mechanic's Liens. All work performed, materials furnish-
ed, or obligations incurred by or at the request of a Tenant Party shall be
deemed authorized and ordered by Tenant only, and Tenant shall not permit any
mechanic's or construction liens to be filed against the Premises or the Project
in connection therewith. Upon completion of any such work, Tenant shall deliver
to Landlord final lien waivers from all contractors, subcontractors and
materialmen who performed such work. If such a lien is filed, then Tenant shall,
within ten days after Landlord has delivered notice of the filing thereof to
Tenant (or such earlier time period as may be necessary to prevent the
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forfeiture of the Premises, the Project or any interest of Landlord therein or
the imposition of a civil or criminal fine with respect thereto), either (1) pay
the amount of the lien and cause the lien to be released of record, or (2)
diligently contest such lien and deliver to Landlord a bond or other security
reasonably satisfactory to Landlord. If Tenant fails to timely take either such
action, then Landlord may pay the lien claim, and any amounts so paid, including
expenses and interest, shall be paid by Tenant to Landlord within ten days after
Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree
that their relationship is and shall be solely that of "landlord-tenant"
(thereby excluding a relationship of "owner-contractor," "owner-agent" or other
similar relationships) and that Tenant is not authorized to act as Landlord's
common law agent or construction agent in connection with any work performed in
the Premises. Accordingly, all materialmen, contractors, artisans, mechanics,
laborers and any other persons now or hereafter contracting with Tenant, any
contractor or subcontractor of Tenant or any other Tenant Party for the
furnishing of any labor, services, materials, supplies or equipment with respect
to any portion of the Premises, at any time from the date hereof until the end
of the Term, are hereby charged with notice that they look exclusively to Tenant
to obtain payment for same. Nothing herein shall be deemed a consent by Landlord
to any liens being placed upon the Premises, the Project or Landlord's interest
therein due to any work performed by or for Tenant or deemed to give any
contractor or subcontractor or materialman any right or interest in any funds
held by Landlord to reimburse Tenant for any portion of the cost of such work.
Tenant shall defend, indemnify and hold harmless Landlord and its agents and
representatives from and against all claims, demands, causes of action, suits,
judgments, damages and expenses (including attorneys' fees) in any way arising
from or relating to the failure by any Tenant Party to pay for any work
performed, materials furnished, or obligations incurred by or at the request of
a Tenant Party. This indemnity provision shall survive termination or expiration
of this Lease.
9. Use. Tenant shall continuously occupy and use the Premises only for
the Permitted Use and shall comply with all Laws relating to the use, condition,
access to, and occupancy of the Premises and will not commit waste, overload the
Building's Structure or the Building's Systems or subject the Premises to use
that would damage the Premises. The population density within the Premises as a
whole shall at no time exceed one person for each 300 rentable square feet in
the Premises; however, such population density may from time to time exceed such
number on a temporary basis for meetings, conferences and other events of a
temporary nature. Tenant shall not conduct second or third shift operations
within the Premises; however, Tenant may use the Premises after normal business
hours, so long as Tenant is not generally conducting business from the Premises
after normal business hours. Notwithstanding anything in this Lease to the
contrary, as between Landlord and Tenant, (a) Tenant shall bear the risk of
complying with Title III of the Americans With Disabilities Act of 1990, any
state laws governing handicapped access or architectural barriers, and all
rules, regulations, and guidelines promulgated under such laws, as amended from
time to time (the "Disabilities Acts") in the Premises, and (b) Landlord shall
bear the risk of complying with the Disabilities Acts in the common areas of the
Building, other than compliance that is necessitated by the use of the Premises
for other than the Permitted Use or as a result of any alterations or additions,
including any initial tenant improvement work, made by or on behalf of a Tenant
Party (which risk and responsibility shall be borne by Tenant). The Premises
shall not be used for any use which is disreputable, creates extraordinary fire
hazards, or results in an increased rate of insurance on the Project or its
contents, or for the storage of any Hazardous Materials (other than de minimis
quantities found in typical office supplies [e.g., photocopier toner] and then
only in compliance with all Laws and in a reasonable and prudent manner). Except
as provided below, the following uses are expressly prohibited in the Premises:
schools, governmental offices or agencies; personnel agencies; collection
agencies; credit unions; data processing, telemarketing, reservation centers or
other "call centers"; medical treatment and health care; radio, television or
other communications broadcasting; restaurants and other retail; and customer
service offices of a public utility company. Notwithstanding the preceding
sentence, the following ancillary uses are permitted in the Premises only so
long as they do not, in the aggregate, occupy more than 10% of the rentable
square feet in the Premises or any single floor (whichever is less): (1) the
following services provided by Tenant exclusively to its employees: schools,
training and other educational services; and (2)the following services directly
and exclusively supporting Tenant's business: telemarketing; reservations;
storage; data processing; debt collection; and similar support services. If,
because of a Tenant Party's acts or omissions or because Tenant vacates the
Premises, the rate of insurance on the Building or its contents increases,
Tenant shall pay to Landlord the amount of such increase on demand, and
acceptance of such payment shall not waive any of Landlord's other rights. If
Tenant fails to cease or remediate such acts within five days after Landlord's
request that Tenant do so, then such acts or omissions shall be an Event of
Default. Tenant shall conduct its business and control each other Tenant Party
so as not to create any nuisance or unreasonably interfere with other tenants or
Landlord in its management of the Project.
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10. Assignment and Subletting.
10.1 Transfers. Except as provided in Section 10.8, Tenant
shall not, without the prior written consent of Landlord, (1) assign, transfer,
or encumber this Lease or any estate or interest herein, whether directly or by
operation of law, (2) permit any other entity to become Tenant hereunder by
merger, consolidation, or other reorganization, (3) if Tenant is an entity other
than a corporation whose stock is publicly traded, permit the transfer of an
ownership interest in Tenant so as to result in a change in the current direct
or indirect control of Tenant, (4) sublet any portion of the Premises, (5) grant
any license, concession, or other right of occupancy of any portion of the
Premises, (6) permit the use of the Premises by any parties other than Tenant,
or (7) sell or otherwise transfer, in one or more transactions, a majority of
Tenant's assets (any of the events listed in Section 10.1(1) through 10.1(7)
being a "Transfer").
10.2 Consent Standards. Landlord shall not unreasonably with-
hold its consent to any assignment of Tenant's entire interest in this Lease or
subletting of the Premises, provided that the proposed transferee (1) is
creditworthy, (2) will use the Premises for the Permitted Use (thus, excluding,
without limitation, uses for credit processing and telemarketing) and will not
use the Premises in any manner that would conflict with any exclusive use
agreement or other similar agreement entered into by Landlord with any other
tenant of the Project, (3) will not use the Premises, Building or Project in a
manner that would materially increase the pedestrian or vehicular traffic to the
Premises, Building or Project, (4) is not a governmental or quasi-governmental
entity, or subdivision or agency thereof, (5) is not another occupant of the
Project or an Affiliate of such occupant so long as Landlord anticipates having
in the 90 day period following the proposed date of the Transfer, sufficient
available space to lease to such prospective tenant, (6) is not currently and
has not in the past been involved in litigation with Landlord or any of its
Affiliates, (7) meets Landlord's reasonable standards for tenants of the Project
and is otherwise compatible with the character of the occupancy of the Project,
(8) will not result in, either by the transfer or any consideration payable to
Landlord in connection therewith, an adverse effect on any real estate
investment trust (or pension fund or other ownership vehicle) qualification
tests applicable to Landlord or any of its Affiliates, and (9) is not a person
or entity with whom Landlord is then, or has been within the four-month period
prior to the time Tenant seeks to enter into such assignment or subletting,
negotiating to lease space in the Project or any Affiliate of any such person or
entity so long as Landlord anticipates having in the 90 day period following the
proposed date of the Transfer, sufficient available space to lease to such
prospective tenant; otherwise, Landlord may withhold its consent in its sole
discretion. Additionally, Landlord may withhold its consent in its sole
discretion to any proposed Transfer if any Event of Default by Tenant then
exists. Any Transfer made while an Event of Default exists hereunder,
irrespective whether Landlord's consent is required hereunder with respect to
the Transfer, shall be voidable by Landlord in Landlord's sole discretion. In
agreeing to act reasonably, Landlord is agreeing to act in a manner consistent
with the standards followed by large institutional owners of commercial real
estate and Landlord is permitted to consider the financial terms of the Transfer
and the impact of the Transfer on Landlord's own leasing efforts and the value
of the Project. Landlord may condition its consent to a Transfer on an increase
in the Security Deposit or receipt of a guaranty from a suitable party. Landlord
shall not be required to act reasonably in considering any request to pledge or
encumber this Lease or any interest therein. For the purposes of clause (9)
above, "negotiating to lease space" shall mean any of the following: Landlord
has received a request for proposal from a prospective tenant or its broker,
Landlord has submitted a written lease proposal or Landlord has initiated space
planning for a prospective tenant.
10.3 Request for Consent. If Tenant requests Landlord's
consent to a Transfer, then, at least 15 business days prior to the effective
date of the proposed Transfer, Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the proposed
transferee: name and address of the proposed transferee and any entities and
persons who own, control or direct the proposed transferee; reasonably
satisfactory information about its business and business history; its proposed
use of the Premises; banking, financial, and other credit information; and
general references sufficient to enable Landlord to determine the proposed
transferee's creditworthiness and character. Concurrently with Tenant's notice
of any request for consent to a Transfer, Tenant shall pay to Landlord a fee of
$1,000 to defray Landlord's expenses in reviewing such request, and Tenant shall
also reimburse Landlord immediately upon request for its reasonable attorneys'
fees and other expenses incurred in connection with considering any request for
consent to a Transfer.
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10.4 Conditions to Consent. If Landlord consents to a
proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes Tenant's obligations hereunder;
however, any transferee of less than all of the space in the Premises shall be
liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers
and no subtenant of any portion of the Premises shall be permitted to further
sublease any portion of its subleased space. If an Event of Default occurs while
the Premises or any part thereof are subject to a Transfer, then Landlord, in
addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so following the occurrence of an Event of
Default hereunder. Tenant shall pay for the cost of any demising walls or other
improvements necessitated by a proposed subletting or assignment.
10.5 Attornment by Subtenants. Each sublease by Tenant here-
under shall be subject and subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and each subtenant by entering into a
sublease is deemed to have agreed that in the event of termination, re-entry or
dispossession by Landlord under this Lease, Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublandlord, under such
sublease, and such subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be (1) liable for any previous act or omission of Tenant under such
sublease, (2) subject to any counterclaim, offset or defense that such subtenant
might have against Tenant, (3) bound by any previous modification of such
sublease not approved by Landlord in writing or by any rent or additional rent
or advance rent which such subtenant might have paid for more than the current
month to Tenant, and all such rent shall remain due and owing, notwithstanding
such advance payment, (4) bound by any security or advance rental deposit made
by such subtenant which is not delivered or paid over to Landlord and with
respect to which such subtenant shall look solely to Tenant for refund or
reimbursement, or (5) obligated to perform any work in the subleased space or to
prepare it for occupancy, and in connection with such attornment, the subtenant
shall execute and deliver to Landlord any instruments Landlord may reasonably
request to evidence and confirm such attornment. Each subtenant or licensee of
Tenant shall be deemed, automatically upon and as a condition of its occupying
or using the Premises or any part thereof, to have agreed to be bound by the
terms and conditions set forth in this Section 10.5. The provisions of this
Section 10.5 shall be self-operative, and no further instrument shall be
required to give effect to this provision.
10.6 Cancellation. Landlord may, within 30 days after sub-
mission of Tenant's written request for Landlord's consent to an assignment or
subletting, cancel this Lease as to the portion of the Premises proposed to be
sublet or assigned as of the date the proposed Transfer is to be effective. If
Landlord cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises and Tenant shall pay to Landlord
all Rent accrued through the cancellation date relating to the portion of the
Premises covered by the proposed Transfer. Thereafter, Landlord may lease such
portion of the Premises to the prospective transferee (or to any other person)
without liability to Tenant. Notwithstanding the foregoing, if Landlord provides
written notification to Tenant of its election to cancel this Lease as to any
portion of the Premises as provided above, Tenant may rescind its proposed
assignment or subletting of the Premises by notifying Landlord in writing within
three business days following Landlord's written cancellation notice.
10.7 Additional Compensation. While no Event of Default
exists, Tenant shall pay to Landlord, immediately upon receipt thereof, fifty
percent (50%) of the excess of (1) all compensation received by Tenant for a
Transfer less the actual out-of-pocket costs reasonably incurred by Tenant with
unaffiliated third parties (i.e., brokerage commissions and tenant finish work)
in connection with such Transfer (such costs shall be amortized on a
straight-line basis over the term of the Transfer in question) over (2) the Rent
allocable to the portion of the Premises covered thereby. While any Event of
Default exists, Tenant shall pay to Landlord, immediately upon receipt thereof,
one hundred percent (100%) of the excess of (A) all compensation received by
Tenant for a Transfer over (B) the Rent allocable to the portion of the Premises
covered thereby.
10.8 Permitted Transfers. Notwithstanding Section 10.1,
Tenant may Transfer all or part of its interest in this Lease or all or part of
the Premises (a "Permitted Transfer") to the following types of entities (a
"Permitted Transferee") without the written consent of Landlord:
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10.8.1 an Affiliate of Tenant;
10.8.2 any corporation, limited partnership, limited
liability partnership, limited liability company or other business entity in
which or with which Tenant, or its corporate successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions governing
merger and consolidation of business entities, so long as (1) Tenant's
obligations hereunder are assumed by the entity surviving such merger or created
by such consolidation; and (2) the Tangible Net Worth of the surviving or
created entity is not less than the Tangible Net Worth of Tenant as of the date
hereof; or
10.8.3 any corporation, limited partnership, limited
liability partnership, limited liability company or other business entity
acquiring all or substantially all of Tenant's assets, so long as (1) Tenant's
obligations hereunder are assumed by the entity acquiring such assets; and (2)
such entity's Tangible Net Worth after such acquisition is not less than the
Tangible Net Worth of Tenant as of the date hereof.
Tenant shall promptly notify Landlord of any such Permitted Transfer. Tenant
shall remain liable for the performance of all of the obligations of Tenant
hereunder, or if Tenant no longer exists because of a merger, consolidation, or
acquisition, the surviving or acquiring entity shall expressly assume in writing
the obligations of Tenant hereunder. Additionally, the Permitted Transferee
shall comply with all of the terms and conditions of this Lease, including the
Permitted Use, and the use of the Premises by the Permitted Transferee may not
violate any other agreements affecting the Premises or the Project, Landlord or
other tenants of the Project. No later than ten days after the effective date of
any Permitted Transfer, Tenant agrees to furnish Landlord with (A) copies of the
instrument effecting any of the foregoing Transfers, (B) documentation
establishing Tenant's satisfaction of the requirements set forth above
applicable to any such Transfer, and (C) evidence of insurance as required under
this Lease with respect to the Permitted Transferee. The occurrence of a
Permitted Transfer shall not waive Landlord's rights as to any subsequent
Transfers. "Tangible Net Worth" means the excess of total assets over total
liabilities, in each case as determined in accordance with generally accepted
accounting principles consistently applied ("GAAP"), excluding, however, from
the determination of total assets all assets which would be classified as
intangible assets under GAAP including goodwill, licenses, patents, trademarks,
trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted
Transferee shall be subject to the terms of this Section 10.
11. Insurance; Waivers; Subrogation; Indemnity.
11.1 Tenant's Insurance. Effective as of the earlier of (1)
the date Tenant enters or occupies the Premises, or (2) the Commencement Date,
and continuing throughout the Term, Tenant shall maintain the following
insurance policies: (A) commercial general liability insurance (including
property damage, bodily injury and personal injury coverage) in amounts of
$1,000,000 per occurrence in primary coverage, with an additional $3,000,000 in
umbrella coverage or, following the expiration of the initial Term, such other
amounts as Landlord may from time to time reasonably require (and, if the use
and occupancy of the Premises include any activity or matter that is or may be
excluded from coverage under a commercial general liability policy [e.g., the
sale, service or consumption of alcoholic beverages], Tenant shall obtain such
endorsements to the commercial general liability policy or otherwise obtain
insurance to insure all liability arising from such activity or matter
[including liquor liability, if applicable] in such amounts as Landlord may
reasonably require), insuring Tenant (and naming as additional insureds
Landlord, Landlord's property management company, Landlord's asset management
company and, if requested in writing by Landlord, Landlord's Mortgagee), against
all liability for injury to or death of a person or persons or damage to
property arising from the use and occupancy of the Premises and (without
implying any consent by Landlord to the installation thereof) the installation,
operation, maintenance, repair or removal of Tenant's Off-Premises Equipment,
(B) cause of loss-special risk form (formerly "all-risk") insurance (including,
but not limited to, sprinkler leakage, ordinance and law, sewer back-up, flood,
earthquake, windstorm and collapse coverage) covering the full value of all
alterations and improvements and betterments in the Premises, naming Landlord
and Landlord's Mortgagee as additional loss payees as their interests may
appear, (C) cause of loss-special risk form (formerly "all-risk") insurance
covering the full value of all furniture, trade fixtures and personal property
(including property of Tenant or others) in the Premises or otherwise placed in
the Project by or on behalf of a Tenant Party (including Tenant's Off-Premises
Equipment), (D) contractual liability insurance sufficient to cover Tenant's
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Tenant's indemnity obligations hereunder (but only if such contractual liability
insurance is not already included in Tenant's commercial general liability
insurance policy), (E) commercial auto liability insurance (if applicable)
covering automobiles owned, hired or used by Tenant in carrying on its business
with limits not less than $1,000,000 combined single limit for each accident,
insuring Tenant (and naming as additional insureds Landlord, Landlord's property
management company, Landlord's asset management company and, if requested in
writing by Landlord, Landlord's Mortgagee), (F) worker's compensation insurance,
and (G) business interruption insurance in an amount equal to or greater than 12
months of Tenant's actual, sustained probable loss. Notwithstanding the
foregoing, and provided that Tenant provides Landlord with sufficient evidence
that Tenant's Tangible Net Worth equals or exceeds 150% of the Basic Rent
obligations hereunder at all times during the Term, Tenant may elect to
self-insure for the risks that would be covered under the business interruption
insurance required under Section 11.1(2)(G) above. Any insurance required to be
maintained by Tenant may be taken out under a blanket insurance policy or
policies covering other premises, property or insureds in addition to the
Premises and Tenant, provided the commercial general liability and umbrella
coverages are on a per location aggregate basis (or contain a per location
aggregate endorsement) and such blanket policy or policies otherwise comply with
this Section 11.1. Tenant's insurance (or self-insurance) shall provide primary
coverage to Landlord when any policy issued to Landlord provides duplicate or
similar coverage, and in such circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish to Landlord certificates of such insurance
and such other evidence satisfactory to Landlord of the maintenance of all
insurance coverages required hereunder at least ten days prior to the earlier of
the Commencement Date or the date Tenant enters or occupies the Premises (in any
event, within ten days of the effective date of coverage), and at least 15 days
prior to each renewal of said insurance, and Tenant shall obtain a written
obligation on the part of each insurance company to notify Landlord at least 30
days before cancellation or a material change of any such insurance policies.
All such insurance policies shall be in form reasonably satisfactory to Landlord
and issued by companies with an A.M. Best rating of A+:VII or better. However,
no review or approval of any insurance certificate or policy by Landlord shall
derogate from or diminish Landlord's rights or Tenant's obligations hereunder.
If Tenant fails to comply with the foregoing insurance requirements or to
deliver to Landlord the certificates or evidence of coverage required herein,
Landlord, in addition to any other remedy available pursuant to this Lease or
otherwise, may, but shall not be obligated to, obtain such insurance and Tenant
shall pay to Landlord on demand the premium costs thereof, plus an
administrative fee of 15% of such cost.
11.2 Landlord's Insurance. Throughout the Term of this Lease,
Landlord shall maintain, as a minimum, the following insurance policies: (1)
property insurance for the Building's replacement value (excluding property
required to be insured by Tenant), less a commercially-reasonable deductible if
Landlord so chooses, and (2) commercial general liability insurance in an amount
of not less than $3,000,000. Landlord may, but is not obligated to, maintain
such other insurance and additional coverages as it may deem necessary. The cost
of all insurance carried by Landlord with respect to the Project shall be
included in Operating Costs. The foregoing insurance policies and any other
insurance carried by Landlord shall be for the sole benefit of Landlord and
under Landlord's sole control, and Tenant shall have no right or claim to any
proceeds thereof or any other rights thereunder. Any insurance required to be
maintained by Landlord may be taken out under a blanket insurance policy or
policies covering other buildings, property or insureds in addition to the
Building and Landlord. In such event, the costs of any such blanket insurance
policy or policies shall be reasonably allocated to the Project and the other
properties covered by such policy or policies as reasonably determined by
Landlord and included as part of Operating Costs. Notwithstanding anything in
this Lease to the contrary, Landlord's indemnity obligations under this Lease
shall be limited to the extent any such claim is insured against under the terms
of any insurance policy maintained by Landlord (or is required to be maintained
by Landlord under the terms of this Lease).
11.3 No Subrogation; Waiver of Property Claims. Landlord and
Tenant each waives any claim it might have against the other for any damage to
or theft, destruction, loss, or loss of use of any property, to the extent the
same is insured against (or permitted to be self-insured against) under any
insurance policy of the types described in this Section 11 that covers the
Project, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, or is required to be insured against under
the terms hereof, regardless of whether the negligence of the other party caused
such Loss (defined below). Additionally, Tenant waives any claim it may have
against Landlord for any Loss to the extent such Loss is caused by a terrorist
act. Each party shall cause its insurance carrier to endorse all applicable
policies waiving the carrier's rights of recovery under subrogation or otherwise
against the other party. Notwithstanding any provision in this Lease to the
contrary, Landlord, its agents, employees and contractors shall not be liable to
Tenant or to any party claiming by, through or under Tenant for (and Tenant
hereby releases Landlord and its servants, agents, contractors, employees and
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invitees from any claim or responsibility for) any damage to or destruction,
loss, or loss of use, or theft of any property of any Tenant Party located in or
about the Project, caused by casualty, theft, fire, third parties or any other
matter or cause, regardless of whether the negligence of any party caused such
loss in whole or in part. Tenant acknowledges that Landlord shall not carry
insurance on, and shall not be responsible for damage to, any property of any
Tenant Party located in or about the Project.
11.4 Indemnity. Subject to Section 11.3, Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including reasonable attorneys' fees) arising
from any injury to or death of any person or the damage to or theft,
destruction, loss, or loss of use of, any property or inconvenience (a "Loss")
(1) occurring in or on the Project (other than within the Premises) to the
extent caused by the negligence or willful misconduct of any Tenant Party, (2)
occurring in the Premises, or (3) arising out of the installation, operation,
maintenance, repair or removal of any property of any Tenant Party located in or
about the Project, including Tenant's Off-Premises Equipment. It being agreed
that clauses (2) and (3) of this indemnity are intended to indemnify Landlord
and its agents against the consequences of their own negligence or fault, even
when Landlord or its agents are jointly, comparatively, contributively, or
concurrently negligent with Tenant, and even though any such claim, cause of
action or suit is based upon or alleged to be based upon the strict liability of
Landlord or its agents; however, such indemnity shall not apply to the sole or
gross negligence or willful misconduct of Landlord and its agents. Subject to
Section 11.3, Landlord shall defend, indemnify, and hold harmless Tenant and its
agents from and against all claims, demands, liabilities, causes of action,
suits, judgments, damages, and expenses (including reasonable attorneys' fees)
for any Loss arising from any occurrence in or on the Building's common areas to
the extent caused by the negligence or willful misconduct of Landlord or its
agents. The indemnities set forth in this Lease shall survive termination or
expiration of this Lease and shall not terminate or be waived, diminished or
affected in any manner by any abatement or apportionment of Rent under any
provision of this Lease. If any proceeding is filed for which indemnity is
required hereunder, the indemnifying party agrees, upon request therefor, to
defend the indemnified party in such proceeding at its sole cost utilizing
counsel satisfactory to the indemnified party.
12. Subordination; Attornment; Notice to Landlord's Mortgagee.
12.1 Subordination. This Lease shall be subordinate to any
deed of trust, mortgage, or other security instrument (each, a "Mortgage"), or
any ground lease, master lease, or primary lease (each, a "Primary Lease"), that
now or hereafter covers all or any part of the Premises (the mortgagee under any
such Mortgage, beneficiary under any such deed of trust, or the lessor under any
such Primary Lease is referred to herein as a "Landlord's Mortgagee"). Any
Landlord's Mortgagee may elect, at any time, unilaterally, to make this Lease
superior to its Mortgage, Primary Lease, or other interest in the Premises by so
notifying Tenant in writing. The provisions of this Section shall be
self-operative and no further instrument of subordination shall be required;
however, in confirmation of such subordination, Tenant shall execute and return
to Landlord (or such other party designated by Landlord) within ten days after
written request therefor such documentation, in recordable form if required, as
a Landlord's Mortgagee may reasonably request to evidence the subordination of
this Lease to such Landlord's Mortgagee's Mortgage or Primary Lease (including a
subordination, non-disturbance and attornment agreement) or, if the Landlord's
Mortgagee so elects, the subordination of such Landlord's Mortgagee's Mortgage
or Primary Lease to this Lease.
12.2 Attornment. Tenant shall attorn to any party succeeding
to Landlord's interest in the Premises, whether by purchase, foreclosure, deed
in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
12.3 Notice to Landlord's Mortgagee. Tenant shall not seek to
enforce any remedy it may have for any default on the part of Landlord without
first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations hereunder.
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12.4 Landlord's Mortgagee's Protection Provisions. If Land
-lord's Mortgagee shall succeed to the interest of Landlord under this Lease,
Landlord's Mortgagee shall not be: (1) liable for any act or omission of any
prior lessor (including Landlord); (2) bound by any rent or additional rent or
advance rent which Tenant might have paid for more than the current month to any
prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; (4) bound by any termination, amendment or modification
of this Lease made without Landlord's Mortgagee's consent and written approval,
except for those terminations, amendments and modifications permitted to be made
by Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and (6) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own fee simple title to the
Project. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan.
12.5 Modification of Lease. If any Landlord's Mortgagee
requires a modification of this Lease, which modification will not cause an
increased cost or expense to Tenant or in any other way materially and adversely
change the rights and obligations of Tenant hereunder, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are reasonably
required therefor and to deliver the same to Landlord within ten business days
following a request therefor. At the request of Landlord or any Landlord's
Mortgagee, Tenant agrees to execute a short form of this Lease and deliver the
same to Landlord within ten business days following the request therefor.
13. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Project which are attached hereto as Exhibit C. Landlord may,
from time to time, change such rules and regulations for the safety, care, or
cleanliness of the Project and related facilities, provided that such changes
are generally applicable to all tenants of the Project whose leases require such
compliance, will not unreasonably interfere with Tenant's use of the Premises
and are enforced by Landlord in a non-discriminatory manner among all tenants
whose leases require such compliance. Tenant shall be responsible for the
compliance or noncompliance with such rules and regulations by each Tenant
Party. Notwithstanding anything to the contrary contained herein, in the event
of any conflict between any subsequent changes or modifications to the rules and
regulations attached hereto as Exhibit C and the terms and conditions of this
Lease, the terms and conditions of this Lease shall control.
14. Condemnation.
14.1 Total Taking. If the entire Building or Premises are
taken by right of eminent domain or conveyed in lieu thereof (a "Taking"), this
Lease shall terminate as of the date of the Taking.
14.2 Partial Taking - Tenant's Rights. If any part of the
Building becomes subject to a Taking and such Taking will prevent Tenant from
conducting on a permanent basis its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Taking, then
Tenant may terminate this Lease as of the date of such Taking by giving written
notice to Landlord within 30 days after the Taking, and Basic Rent and
Additional Rent shall be apportioned as of the date of such Taking. If Tenant
does not terminate this Lease, then Basic Rent and Additional Rent shall be
abated on a reasonable basis as to that portion of the Premises rendered
untenantable by the Taking.
14.3 Partial Taking - Landlord's Rights. If any material
portion, but less than all, of the Building or Project becomes subject to a
Taking, or if Landlord is required to pay any of the proceeds arising from a
Taking to a Landlord's Mortgagee, then Landlord may terminate this Lease by
delivering written notice thereof to Tenant within 30 days after such Taking,
and Basic Rent and Additional Rent shall be apportioned as of the date of
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such Taking. If Landlord does not so terminate this Lease, then this Lease will
continue, but if any portion of the Premises has been taken, Basic Rent and
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14.4 Award. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the Project and other improvements
taken; however, Tenant may separately pursue a claim (to the extent it will not
reduce Landlord's award) against the condemnor for the value of Tenant's
personal property which Tenant is entitled to remove under this Lease, moving
costs and loss of business.
14.5 Restoration. In the event of any Taking of less than the
whole of the Premises which does not result in a termination of this Lease, (a)
Landlord, at its expense but only to the extent of the award actually received
by Landlord pursuant to such Taking (after deducting any reasonable expenses
incurred in connection with such Taking), shall proceed with reasonable
diligence to repair, alter and restore the remaining parts of the affected
Building and the Premises therein to the extent practicable, and (b) if
requested by either party, Landlord and Tenant shall promptly execute an
amendment to this Lease confirming the deletion from the Premises of the space
subject to the Taking.
15. Fire or Other Casualty.
15.1 Repair Estimate. If the Premises or the Project are
damaged by fire or other casualty (a "Casualty"), Landlord shall, within 90 days
after such Casualty, deliver to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by such Casualty.
15.2 Tenant's Rights. If the Premises is damaged by Casualty
such that Tenant is prevented from conducting its business in the Premises in a
manner reasonably comparable to that conducted immediately before such Casualty
and Landlord estimates that the damage caused thereby for which Landlord is
responsible to repair under this Lease pursuant to Section 15.4 below cannot be
repaired within 270 days after the commencement of repairs (the "Repair
Period"), then Tenant may terminate this Lease by delivering written notice to
Landlord of its election to terminate within 30 days after the Damage Notice has
been delivered to Tenant.
15.3 Landlord's Rights. If a Casualty occurs and (1) Landlord
estimates that the damage cannot be repaired within the Repair Period, (2) the
damage exceeds 50% of the replacement cost thereof (excluding foundations and
footings), as estimated by Landlord, and such damage occurs during the last two
years of the Term, (3) regardless of the extent of damage, the damage is not
fully covered by Landlord's insurance policies or Landlord makes a good faith
determination that restoring the damage would be uneconomical, or (4) Landlord
is required to pay any insurance proceeds arising out of the Casualty to a
Landlord's Mortgagee, then Landlord may terminate this Lease by giving written
notice of its election to terminate within 30 days after the Damage Notice has
been delivered to Tenant.
15.4 Repair Obligation. If neither party elects to terminate
this Lease following a Casualty, then Landlord shall, within a reasonable time
after such Casualty, begin to repair the Premises and shall proceed with
reasonable diligence to restore the Premises to substantially the same condition
as they existed immediately before such Casualty; however, Landlord shall not be
required to repair or replace any improvements, alterations or betterments
within the Premises (which shall be promptly and with due diligence repaired and
restored by Tenant at Tenant's sole cost and expense) or any furniture,
equipment, trade fixtures or personal property of Tenant or others in the
Premises or the Project, and Landlord's obligation to repair or restore the
Premises shall be limited to the extent of the insurance proceeds actually
received by Landlord for the Casualty in question or the proceeds that Landlord
would have received had Landlord carried the insurance required to be maintained
by Landlord under Section 11.2. If this Lease is terminated under the provisions
of this Section 15, Landlord shall be entitled to the full proceeds of the
insurance policies providing coverage for all alterations, improvements and
betterments in the Premises (and, if Tenant has failed to maintain insurance on
such items as required by this Lease, Tenant shall pay Landlord an amount equal
to the proceeds Landlord would have received had Tenant maintained insurance on
such items as required by this Lease).
15.5 Abatement of Rent. If the Premises are damaged by
Casualty, Basic Rent and Additional Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on a reasonable basis from
the date of damage until the completion of Landlord's repairs (or until the date
of termination of this
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Lease by Landlord or Tenant as provided above, as the case may be), unless a
Tenant Party caused such damage, in which case, Tenant shall continue to pay
Basic Rent and Additional Rent without abatement.
16. Personal Property Taxes. Tenant shall be liable for, and shall
pay prior to delinquency, all taxes levied or assessed against personal
property, furniture, fixtures, betterments, improvements, and alterations placed
by any Tenant Party in the Premises or in or on the Building or Project. If any
taxes for which Tenant is liable are levied or assessed against Landlord or
Landlord's property and Landlord elects to pay the same, or if the assessed
value of Landlord's property is increased by inclusion of such personal
property, furniture, fixtures, betterments, improvements, and alterations and
Landlord elects to pay the taxes based on such increase, then Tenant shall pay
to Landlord, within 30 days following written request therefor, the part of such
taxes for which Tenant is primarily liable hereunder; however, Landlord shall
not pay such amount if Tenant notifies Landlord that it will contest the
validity or amount of such taxes before Landlord makes such payment, and
thereafter diligently proceeds with such contest in accordance with Law and if
the non-payment thereof does not pose a threat of loss or seizure of the Project
or interest of Landlord therein or impose any fee or penalty against Landlord.
17. Events of Default. Each of the following occurrences shall be
an "Event of Default":
17.1 Payment Default. Tenant's failure to pay Rent within
five days after Landlord has delivered written notice to Tenant that the same is
due; however, an Event of Default shall occur hereunder without any obligation
of Landlord to give any notice if Tenant fails to pay Rent when due and, during
the 12 month interval preceding such failure, Landlord has given Tenant written
notice of failure to pay Rent on one or more occasions;
17.2 Abandonment. Tenant (1) abandons the Premises or any
substantial portion thereof or (2) vacates the Premises or a substantial portion
thereof without providing written notice to Landlord at least ten business days
prior to the date on which Tenant vacates the Premises or any substantial
portion thereof;
17.3 Estoppel; Subordination; Financial Reports. Tenant fails
to provide any estoppel certificate, documentation regarding the subordination
of this Lease or financial reports after Landlord's written request therefor
pursuant to Section 25.5, Section 12.1, and Section 25.19 respectively, and such
failure shall continue for five days after Landlord's second written notice
thereof to Tenant;
17.4 Insurance. Tenant fails to procure and maintain the
insurance policies and coverages required under Section 11.1 or Tenant fails to
deliver to Landlord (within two business days after Landlord's demand therefor)
evidence of such insurance policies and coverages as required under Section
11.1;
17.5 Mechanic's Liens. Tenant fails to pay and release of
record, or diligently contest and bond around, any mechanic's or construction
lien filed against the Premises or the Project for any work performed, materials
furnished, or obligation incurred by or at the request of a Tenant Party, within
the time and in the manner required by Section 8.4;
17.6 Other Defaults. Tenant's failure to perform, comply with,
or observe any other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than 30 days after Landlord has
delivered to Tenant written notice thereof; however, if such failure cannot be
cured within such 30-day period (thus excluding, for example, Tenant's
obligation to provide Landlord evidence of Tenant's insurance coverage) and
Tenant commences to cure such failure within such 30-day period and thereafter
diligently pursues such cure to completion, then such failure shall not be an
Event of Default unless it is not fully cured within an additional 30 days after
the expiration of the 30-day period; and
17.7 Insolvency. The filing of a petition by or against Tenant
(the term "Tenant" shall include, for the purpose of this Section 17.7, any
guarantor of Tenant's obligations hereunder) (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any state or federal debtor
relief law; (3) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
(4) for the reorganization or modification of Tenant's capital structure; or (5)
in any assignment for the benefit of creditors proceeding; however, if such a
petition is filed against Tenant, then such filing shall not be an
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Event of Default unless Tenant fails to have the proceedings initiated by such
petition dismissed within 90 days after the filing thereof.
18. Remedies. Upon any Event of Default, Landlord may, in addition
to all other rights and remedies afforded Landlord hereunder or by law or
equity, take any one or more of the following actions:
18.1 Termination of Lease. Terminate this Lease by giving
Tenant written notice thereof, in which event Tenant shall pay to Landlord the
sum of (a) all Rent accrued hereunder through the date of termination, (b) all
amounts due under Section 19.1, and (c) an amount equal to (but in no event less
than zero) (1) the total Rent that Tenant would have been required to pay for
the remainder of the Term discounted to present value at a per annum rate equal
to the "Prime Rate" as published on the date this Lease is terminated by The
Wall Street Journal in its listing of "Money Rates" minus one percent, minus (2)
the then present fair rental value of the Premises for such period, similarly
discounted;
18.2 Termination of Possession. Terminate Tenant's right to
possess the Premises without terminating this Lease by giving written notice
thereof to Tenant, in which event Tenant shall pay to Landlord (a) all Rent and
other amounts accrued hereunder to the date of termination of possession, (b)
all amounts due from time to time under Section 19.1, and (c) all Rent and other
net sums required hereunder to be paid by Tenant during the remainder of the
Term, diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period, after deducting all costs incurred by
Landlord in reletting the Premises. If Landlord elects to terminate Tenant's
right to possession without terminating this Lease, and to retake possession of
the Premises (and Landlord shall have no duty to make such election), Landlord
shall use reasonable efforts to relet the Premises as further described in
Section 19.4 below. Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, Landlord's failure to relet the
Premises or to collect rent due for such reletting.Tenant shall not be entitled
to the excess of any consideration obtained by reletting over the Rent due
hereunder. Reentry by Landlord in the Premises shall not affect Tenant's
obligations hereunder for the unexpired Term; rather, Landlord may, from time to
time, bring an action against Tenant to collect amounts due by Tenant, without
the necessity of Landlord's waiting until the expiration of the Term. Unless
Landlord delivers written notice to Tenant expressly stating that it has elected
to terminate this Lease, all actions taken by Landlord to dispossess or exclude
Tenant from the Premises shall be deemed to be taken under this Section 18.2. If
Landlord elects to proceed under this Section 18.2, it may at any time elect to
terminate this Lease under Section 18.1;
18.3 Perform Acts on Behalf of Tenant. Perform any act
Tenant is obligated to perform under the terms of this Lease (and enter upon the
Premises in connection therewith if necessary) in Tenant's name and on Tenant's
behalf, without being liable for any claim for damages therefor, and Tenant
shall reimburse Landlord on demand for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this Lease (including,
but not limited to, collection costs and legal expenses), plus interest thereon
at the Default Rate;
18.4 Suspension of Services. Suspend any services required
to be provided by Landlord hereunder without being liable for any claim for
damages therefor; or
18.5 Alteration of Locks. Additionally, with or without
notice, and to the extent permitted by Law, Landlord may alter locks or other
security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant.
19. Payment by Tenant; Non-Waiver; Cumulative Remedies; Mitigation
of Damage.
19.1 Payment by Tenant. Upon any Event of Default, Tenant
shall pay to Landlord all amounts, costs, losses and/or expenses incurred,
abated or foregone by Landlord (including court costs and reasonable attorneys'
fees and expenses) in (1) obtaining possession of the Premises, (2) removing,
storing and/or disposing of Tenant's or any other occupant's property, (3)
repairing, restoring, altering, remodeling, or otherwise putting the Premises
into condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations which
Tenant failed to perform, (6) enforcing, or advising Landlord of, its rights,
remedies, and recourses arising out of the default, and (7)
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securing this Lease, including all commissions, allowances, reasonable
attorneys' fees, and if this Lease or any amendment hereto contains any abated
Rent granted by Landlord as an inducement or concession to secure this Lease or
amendment hereto, the full amount of all Rent so abated (and such abated amounts
shall be payable immediately by Tenant to Landlord, without any obligation by
Landlord to provide written notice thereof to Tenant, and Tenant's right to any
abated rent accruing following such Event of Default shall immediately
terminate). To the full extent permitted by law, Landlord and Tenant agree the
federal and state courts of the state in which the Premises are located shall
have exclusive jurisdiction over any matter relating to or arising from this
Lease and the parties' rights and obligations under this Lease.
19.2 No Waiver. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord of any violation or breach of any of the terms
contained herein shall waive Landlord's rights regarding any future violation of
such term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
19.3 Cumulative Remedies. Any and all remedies set forth
in this Lease: (1) shall be in addition to any and all other remedies Landlord
may have at law or in equity, (2) shall be cumulative, and (3) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy
by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future. Additionally, Tenant shall
defend, indemnify and hold harmless Landlord, Landlord's Mortgagee and their
respective representatives and agents from and against all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
reasonable attorneys' fees) arising from Tenant's failure to perform its
obligations under this Lease.
19.4 Mitigation of Damage. The parties agree any duty imposed
by Law on Landlord to mitigate damages after a default by Tenant under this
Lease shall be satisfied in full if Landlord uses reasonable efforts to lease
the Premises to another tenant (a "Substitute Tenant") in accordance with the
following criteria: (1) Landlord shall have no obligation to solicit or
entertain negotiations with any Substitute Tenant for the Premises until 60 days
following the date upon which Landlord obtains full and complete possession of
the Premises, including the relinquishment by Tenant of any claim to possession
of the Premises by written notice from Tenant to Landlord; (2) Landlord shall
not be obligated to lease or show the Premises on a priority basis or offer the
Premises to any prospective tenant when other space in the Project is or soon
will be available; (3) Landlord shall not be obligated to lease the Premises to
a Substitute Tenant for less than the current fair market value of the Premises,
as determined by Landlord in its sole discretion, nor will Landlord be obligated
to enter into a new lease for the Premises under other terms and conditions that
are unacceptable to Landlord under Landlord's then-current leasing policies; (4)
Landlord shall not be obligated to enter into a lease with a Substitute Tenant:
(A) whose use would violate any restriction, covenant or requirement contained
in the lease of another tenant in the Project; (B) whose use would adversely
affect the reputation of the Project; (C) whose use would require any addition
to or modification of the Premises or Project in order to comply with applicable
Law, including building codes; (D) whose Tangible Net Worth is less than
Tenant's Tangible Net Worth as of the Lease Date and who does not have, in
Landlord's sole opinion, the creditworthiness to be an acceptable tenant; (E)
that is a governmental entity or as otherwise prohibited by Section 9 of the
Lease; or (F) that does not meet Landlord's reasonable standards for tenants of
the Project or is otherwise incompatible with the character of the occupancy of
the Project, as reasonably determined by Landlord; and (5) Landlord shall not be
required to expend any amount of money to alter, remodel or otherwise make the
Premises suitable for use by a Substitute Tenant unless: (A) Tenant pays any
such amount to Landlord prior to Landlord's execution of a lease with such
Substitute Tenant (which payment shall not relieve Tenant of any amount it owes
Landlord as a result of Tenant's default under this Lease); or (B) Landlord, in
Landlord's sole discretion, determines any such expenditure is financially
prudent in connection with entering into a lease with the Substitute Tenant.
20. Landlord's Lien. In addition to any statutory landlord's lien,
now or hereafter enacted, Tenant grants to Landlord, to secure performance of
Tenant's obligations hereunder, a security interest in all of the property
situated in or upon, or used in connection with, the Premises or the Project,
and all proceeds thereof (except merchandise sold in the ordinary course of
business) (collectively, the "Collateral"), and the Collateral shall not be
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removed from the Premises or the Project without the prior written consent of
Landlord until all obligations of Tenant have been fully performed. The
Collateral includes specifically all furniture and all trade and other fixtures,
and inventory, equipment, contract rights, accounts receivable and the proceeds
thereof. For the purposes of this Section 20, there shall be a rebuttable
presumption that all property located in the Premises is owned by Tenant. Upon
the occurrence of an Event of Default, Landlord may, in addition to all other
remedies, without notice or demand except as provided below, exercise the rights
afforded to a secured party under the Uniform Commercial Code of the state in
which the Premises are located (the "UCC"). To the extent the UCC requires
Landlord to give to Tenant notice of any act or event and such notice cannot be
validly waived before a default occurs, then five- days' prior written notice
thereof shall be reasonable notice of the act or event. In order to perfect such
security interest, Landlord may file any financing statement or other instrument
necessary at Tenant's expense at the state and county Uniform Commercial Code
filing offices. Landlord shall subordinate the security interest in the
Collateral granted to Landlord under this Section 20, to Tenant's primary line
of credit provider so long as such credit provider is an institutional lender
unaffiliated with Tenant, and Landlord shall, at Tenant's expense, execute
Landlord's standard form of subordination documentation to evidence such
subordination; provided, however, such subordination shall not apply to any
Collateral paid for in whole or in part by Landlord. Additionally, Landlord's
security interest in the Collateral is subordinate to any existing financing
statements listing Tenant as "Debtor" which are properly filed and in effect as
of the Lease Date.
21. Surrender of Premises. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease or Tenant's right to
possess the Premises, Tenant shall (a) deliver to Landlord the Premises
broom-clean with all improvements located therein in good repair and condition
(except for condemnation and Casualty damage not caused by Tenant, as to which
Sections 14 and 15 shall control), free of any liens or encumbrances and free of
Hazardous Materials placed on the Premises during the Term; (b) deliver to
Landlord all keys to the Premises and all access cards to the Project; (c)
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises or elsewhere in the Project by a Tenant Party and unattached
equipment located in the Premises (but Tenant may not remove any such item which
was paid for, in whole or in part, by Landlord unless Landlord requires such
removal); (d) remove any and all cabling (including conduit) installed in the
Premises or elsewhere in the Project by or on behalf of a Tenant Party,
including all connections for such cabling, at Tenant's sole cost or, if
Landlord so elects, Landlord may perform such removal at Tenant's sole cost,
with the cost thereof to be paid to Landlord as Rent (Landlord will have the
right, however, upon notice to Tenant, given prior to the expiration or earlier
termination of the Term, to require Tenant to abandon and leave in place,
without additional payment to Tenant or credit against Rent, any and all such
cabling [including conduit], whether located in the Premises or elsewhere in the
Project, and if Landlord so elects, Tenant covenants that such cabling shall be
left in a neat and safe condition in accordance with the requirements of all
applicable Laws, including the National Electric Code or any successor statute,
and shall be terminated at both ends of a connector, properly labeled at each
end and in each electrical closet and junction box); and (e) remove such
alterations, additions, improvements, and Tenant's Off-Premises Equipment as
Landlord may require; however, Tenant shall not be required to remove any
addition or improvement to the Premises or the Project if Landlord has
specifically agreed in writing that the improvement or addition in question need
not be removed. Tenant shall repair all damage caused by the removal of the
items described above. If Tenant fails to remove any of the items required to be
removed by Tenant, Landlord may, at Landlord's option, (1) deem such items to
have been abandoned by Tenant, the title thereof shall immediately pass to
Landlord at no cost to Landlord, and such items may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant
and without any obligation to account for such items; any such disposition shall
not be considered a strict foreclosure or other exercise of Landlord's rights in
respect of the security interest granted hereunder or otherwise, (2) remove such
items, perform any work required to be performed by Tenant hereunder, and repair
all damage caused by such work, and Tenant shall reimburse Landlord on demand
for any expenses which Landlord may incur in effecting compliance with Tenant's
obligations hereunder (including collection costs and attorneys' fees), plus
interest thereon at the Default Rate, or (3) elect any of the actions described
in clauses (1) and (2) above as Landlord may elect in its sole discretion. The
provisions of this Section 21 shall survive the end of the Term.
22. Holding Over. If Tenant fails to vacate the Premises at the end
of the Term, then Tenant shall be a tenant at sufferance and, in addition to all
other damages and remedies to which Landlord may be entitled for such holding
over, (a) Tenant shall pay, in addition to the other Rent, Basic Rent equal to
the greater of (1) 150% of the Rent payable during the last month of the Term
for the first 60 days, 200% thereafter, or (2) 125% of the prevailing
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rental rate in the Project for similar space, and (b) Tenant shall otherwise
continue to be subject to all of Tenant's obligations under this Lease. The
provisions of this Section 22 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and liability resulting from
such failure, including any claims made by any succeeding tenant founded upon
such failure to surrender, and any lost profits or other consequential damages
to Landlord resulting therefrom.
23. Certain Rights Reserved by Landlord. Landlord shall have the
following rights:
23.1 Building Operations. To decorate and to make inspections,
repairs, alterations, additions, changes, or improvements, whether structural or
otherwise, in and about the Project, or any part thereof; to enter upon the
Premises (after giving Tenant reasonable notice thereof, which may be oral
notice, except in cases of real or apparent emergency, in which case no notice
shall be required) and, during the continuance of any such work, to temporarily
close doors, entryways, public space, and corridors in the Building; to
interrupt or temporarily suspend Building services and facilities; to change the
name of the Building; and to change the arrangement and location of entrances or
passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or
other public parts of the Building;
23.2 Security. To take such reasonable measures as Landlord
deems advisable for the security of the Building and its occupants; evacuating
the Building for cause, suspected cause, or for drill purposes; temporarily
denying access to the Building; and closing the Building after normal business
hours and on Sundays and holidays, subject, however, to Tenant's right to enter
when the Building is closed after normal business hours under such reasonable
regulations as Landlord may prescribe from time to time, which may include, by
way of example but not limitation, that persons entering or leaving the
Building, whether or not during normal business hours, identify themselves to a
security officer by registration or otherwise and that such persons establish
their right to enter or leave the Building;
23.3 Prospective Purchasers and Lenders. Upon reasonable
prior notice (which notice may be verbal) to Tenant, to enter the Premises at
all reasonable hours to show the Premises to prospective purchasers or lenders;
and
23.4 Prospective Tenants. At any time during the last 12
months of the Term (or earlier if Tenant has notified Landlord in writing that
it does not desire to renew the Term) upon reasonable prior notice (which notice
may be verbal) to Tenant, or at any time following the occurrence of an Event of
Default, to enter the Premises at all reasonable hours to show the Premises to
prospective tenants.
In exercising the foregoing rights in this Section 23, Landlord shall use
commercially reasonable efforts to minimize any interference with Tenant's
occupancy of the Premises.
24. Substitution Space. Landlord may, at Landlord's expense, relocate
Tenant within the Project to space which is comparable in size, utility and
condition to the Premises. If Landlord relocates Tenant, Landlord shall
reimburse Tenant for Tenant's reasonable out-of-pocket expenses for moving
Tenant's furniture, equipment, and supplies from the Premises to the relocation
space and for reprinting Tenant's stationery of the same quality and quantity as
Tenant's stationery supply on hand immediately before Landlord's notice to
Tenant of the exercise of this relocation right. Upon such relocation, the
relocation space shall be deemed to be the Premises and the terms of this Lease
shall remain in full force and shall apply to the relocation space. No amendment
or other instrument shall be necessary to effectuate the relocation contemplated
by this Section; however, if requested by Landlord, Tenant shall execute an
appropriate amendment document within ten business days after Landlord's written
request therefor. If Tenant fails to execute such relocation amendment within
such time period, or if Tenant fails to relocate within the time period stated
in Landlord's relocation notice to Tenant (or, if such relocation space is not
available on the date specified in Landlord's relocation notice, as soon
thereafter as the relocation space becomes available and is tendered to Tenant
in the condition required by this Lease), then, in addition to Landlord's other
remedies set forth in this Lease, at law and/or in equity, Landlord may
terminate this Lease by notifying Tenant in writing thereof at least 60 days
prior to the termination date contained in Landlord's termination notice. Time
is of the essence with respect to Tenant's obligations under this Section.
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25. Miscellaneous.
25.1 Landlord Transfer. Landlord may transfer any portion
of the Project and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder arising after the date of transfer, provided that
the assignee assumes in writing Landlord's obligations hereunder arising from
and after the transfer date.
25.2 Landlord's Liability. The liability of Landlord (and its
successors, partners, shareholders or members) to Tenant (or any person or
entity claiming by, through or under Tenant) for any default by Landlord under
the terms of this Lease or any matter relating to or arising out of the
occupancy or use of the Premises and/or other areas of the Building shall be
limited to Tenant's actual direct, but not consequential, damages therefor and
shall be recoverable only from the amount which is equal to the lesser of (1)
the interest of Landlord in the Building, or (2) the equity interest Landlord
would have in the Building if the Building were encumbered by third-party debt
in an amount equal to 80% of the value of the Building (as such value is
determined by Landlord). Further, Landlord (and its successors, partners,
shareholders or members) shall not be personally liable for any deficiency, and
in no event shall any liability hereunder extend to any sales or insurance
proceeds received by Landlord (or its successors, partners, shareholders or
members) in connection with the Project, the Building or the Premises.
Additionally, Tenant hereby waives its statutory lien under Section 91.004 of
the Texas Property Code. The provisions of this Section shall survive any
expiration or termination of this Lease.
25.3 Force Majeure. Other than for Tenant's obligations under
this Lease that can be performed by the payment of money (e.g., payment of Rent
and maintenance of insurance), whenever a period of time is herein prescribed
for action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, terrorist acts or activities, governmental laws,
regulations, or restrictions, or any other causes of any kind whatsoever which
are beyond the control of such party.
25.4 Brokerage. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this Lease,
other than Stream Realty Brokerage LLC and ▇▇▇▇▇▇▇▇▇▇ and Company, whose
commissions shall be paid by Landlord pursuant to separate written agreements.
Tenant and Landlord shall each indemnify the other against all costs, expenses,
attorneys' fees, liens and other liability for commissions or other compensation
claimed by any other broker or agent claiming the same by, through, or under the
indemnifying party.
25.5 Estoppel Certificates. From time to time, Tenant shall
furnish to any party designated by Landlord, within ten days after Landlord has
made a request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request. Unless otherwise required by Landlord's
Mortgagee or a prospective purchaser or mortgagee of the Project, the initial
form of estoppel certificate to be signed by Tenant is attached hereto as
Exhibit F; provided, however, such form may be amended or modified to the extent
any of the certifications or representations contained therein are not true as
of the date Tenant executes the same. If Tenant does not deliver to Landlord the
certificate signed by Tenant within such required time period, Landlord,
Landlord's Mortgagee and any prospective purchaser or mortgagee, may
conclusively presume and rely upon the following facts: (1) this Lease is in
full force and effect; (2) the terms and provisions of this Lease have not been
changed except as otherwise represented by Landlord; (3) not more than one
monthly installment of Basic Rent and other charges have been paid in advance;
(4) there are no claims against Landlord nor any defenses or rights of offset
against collection of Rent or other charges; and (5) Landlord is not in default
under this Lease. In such event, Tenant shall be estopped from denying the truth
of the presumed facts.
25.6 Notices. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address specified in the
Basic Lease Information, (2) hand- delivered to the intended addressee, (3) sent
by a nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery (which, in the case of delivery by facsimile transmission, shall be
deemed to occur at the time of delivery indicated on the electronic confirmation
of the facsimile so long as the confirmatory letter referenced above is sent) to
the address of the addressee (even if such
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addressee refuses delivery thereof). The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this
provision.
25.7 Separability. If any clause or provision of this Lease
is illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
25.8 Amendments; Binding Effect; No Electronic Records.
This Lease may not be amended except by instrument in writing signed by Landlord
and Tenant. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord, and no custom or
practice which may evolve between the parties in the administration of the terms
hereof shall waive or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. Landlord and
Tenant hereby agree not to conduct the transactions or communications
contemplated by this Lease by electronic means, except by facsimile transmission
as specifically set forth in Section 25.6 or electronic signatures as
specifically set forth in Section 25.9; nor shall the use of the phrase "in
writing" or the word "written" be construed to include electronic communications
except by facsimile transmissions as specifically set forth in Section 25.6 and
other electronic signatures as specifically set forth in Section 25.9. The terms
and conditions contained in this Lease shall inure to the benefit of and be
binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly
provided. This Lease is for the sole benefit of Landlord and Tenant, and, other
than Landlord's Mortgagee, no third party shall be deemed a third party
beneficiary hereof.
25.9 Counterparts. This Lease (and amendments to this Lease)
may be executed in any number of counterparts, each of which shall be deemed to
be an original, and all of such counterparts shall constitute one document. To
facilitate execution of this Lease, the parties may execute and exchange, by
telephone facsimile or electronic mail PDF, counterparts of the signature pages.
Signature pages may be detached from the counterparts and attached to a single
copy of this Lease to physically form one document.
25.10 Quiet Enjoyment. Provided Tenant has performed all of
its obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease and all matters of record as of the date of this Lease
which are applicable to the Premises.
25.11 No Merger. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof if
the same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
25.12 No Offer. The submission of this Lease to Tenant shall
not be construed as an offer, and Tenant shall not have any rights under this
Lease unless Landlord executes a copy of this Lease and delivers it to Tenant.
25.13 Entire Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith. Except as
otherwise provided herein, no subsequent alteration, amendment, change or
addition to this Lease shall be binding unless in writing and signed by Landlord
and Tenant. The normal rule of construction that any ambiguities be resolved
against the drafting party shall not apply to the interpretation of this Lease
or any exhibits or amendments hereto.
25.14 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, TENANT (ON BEHALF OF ITSELF AND ITS RESPECTIVE SUCCESSORS, ASSIGNS AND
SUBTENANTS) AND LANDLORD EACH, AFTER CONSULTATION WITH COUNSEL, KNOWINGLY WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS LEASE OR ANY OTHER
INSTRUMENT,
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DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO.
25.15 Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located.
25.16 Recording. Tenant shall not record this Lease or any
memorandum of this Lease without the prior written consent of Landlord, which
consent may be withheld or denied in the sole and absolute discretion of
Landlord, and any recordation by Tenant shall be a material breach of this
Lease. Tenant grants to Landlord a power of attorney to execute and record a
release releasing any such recorded instrument of record that was recorded
without the prior written consent of Landlord.
25.17 Water or Mold Notification. To the extent Tenant or its
agents or employees discover any water leakage, water damage or mold in or about
the Premises or Project, Tenant shall promptly notify Landlord thereof in
writing.
25.18 Joint and Several Liability. If Tenant consists of more
than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease. All unperformed obligations of Tenant
hereunder not fully performed at the end of the Term shall survive the end of
the Term, including payment obligations with respect to Rent and all obligations
concerning the condition and repair of the Premises.
25.19 Financial Reports. If Tenant is an entity that is
domiciled in the United States of America, and whose securities are funded
through a public securities exchange subject to regulation by the United States
of America publicly traded over exchanges based in the United States and whose
financial statements are readily available, the terms of this Section 25.19
shall not apply. Otherwise, within 15 days after Landlord's request, Tenant will
furnish Tenant's most recent audited financial statements (including any notes
to them) to Landlord, or, if no such audited statements have been prepared, such
other financial statements (and notes to them) as may have been prepared by an
independent certified public accountant or, failing those, Tenant's internally
prepared financial statements. Tenant will discuss its financial statements with
Landlord and, following the occurrence of an Event of Default hereunder, will
give Landlord access to Tenant's books and records in order to enable Landlord
to verify the financial statements. Landlord will not disclose any aspect of
Tenant's financial statements that Tenant designates to Landlord as confidential
except (1) to Landlord's Mortgagee or prospective mortgagees or purchasers of
the Building, (2) in litigation between Landlord and Tenant, and/or (3) if
required by Law or court order. Tenant shall not be required to deliver the
financial statements required under this Section 25.19 more than once in any
12-month period unless requested by Landlord's Mortgagee or a prospective buyer
or lender of the Building or an Event of Default occurs.
25.20 Landlord's Fees. Whenever Tenant requests Landlord to
take any action not required of Landlord hereunder or give any consent required
or permitted under this Lease, Tenant will reimburse Landlord for Landlord's
reasonable, out-of-pocket costs payable to third parties and incurred by
Landlord in reviewing the proposed action or consent, including reasonable
engineers' or architects' fees and reasonable attorneys' fees (including amounts
allocated by Landlord to Landlord's in-house counsel as well as fees and
expenses charged by outside counsel engaged by Landlord), within 30 days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action. If Landlord reasonably believes the out-of-pocket
costs payable to third parties to be incurred by Landlord in reviewing the
proposed action or consent will exceed $2,500, Landlord will first notify Tenant
of such cost estimate before proceeding with such third-party expenses. Landlord
shall not have any obligation to review such proposed action or consent until
Tenant has consented to such additional costs and expenses in writing, and if
Tenant fails to consent to such additional costs and expenses within five
business days after Landlord's written notification to Tenant thereof, Tenant
shall be deemed to have rescinded its request for such action or consent.
25.21 Telecommunications. Tenant and its telecommunications
companies, including local exchange telecommunications companies and alternative
access vendor services companies, shall have no right of access to and within
the Building, for the installation and operation of telecommunications systems,
including voice, video, data, Internet, and any other services provided over
wire, fiber optic, microwave, wireless, and any other
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transmission systems ("Telecommunications Services"), for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location unless Landlord has previously reviewed and approved all plans,
specifications and contracts pertaining to telecommunication service entry
points, and any documents to which Landlord is a party or which may encumber the
Project, which consent will not be unreasonably withheld. All providers of
Telecommunications Services shall be required to comply with the rules and
regulations of the Project, applicable Laws and Landlord's policies and
practices for the Project, and shall be required, at Landlord's election, to
enter into a license agreement with Landlord to confirm and approve items such
as, without limitation, the proposed location (and labeling requirements) of
wiring, cabling, fiber lines, points of demarcation, entry into the Project,
insurance requirements and the like. Tenant acknowledges that Landlord shall not
be required to provide or arrange for any Telecommunications Services and that
Landlord shall have no liability to any Tenant Party in connection with the
installation, operation or maintenance of Telecommunications Services or any
equipment or facilities relating thereto. Tenant, at its cost and for its own
account, shall be solely responsible for obtaining all Telecommunications
Services. However, nothing in this Section 25.21 shall prohibit Tenant's
employees from accessing areas solely within the Premises that do not contain
any equipment serving other tenants of the Project or the Building's Systems.
25.22 Confidentiality. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent; however, Tenant may
disclose the terms and conditions of this Lease to its attorneys, accountants,
employees and existing or prospective financial partners, or if required by Law
or court order, provided all parties to whom Tenant is permitted hereunder to
disclose such terms and conditions are advised by Tenant of the confidential
nature of such terms and conditions and agree to maintain the confidentiality
thereof (in each case, prior to disclosure). Tenant shall be liable for any
disclosures made in violation of this Section by Tenant or by any entity or
individual to whom the terms of and conditions of this Lease were disclosed or
made available by Tenant. The consent by Landlord to any disclosures shall not
be deemed to be a waiver on the part of Landlord of any prohibition against any
future disclosure.
25.23 Authority. Tenant (if a corporation, partnership
or other business entity) hereby represents and warrants to Landlord that Tenant
is and will remain during the Term a duly formed and existing entity qualified
to do business in the state in which the Premises are located, that Tenant has
full right and authority to execute and deliver this Lease, and that each person
signing on behalf of Tenant is authorized to do so, and that Tenant's
organizational identification number assigned by the Florida Secretary of State
is P10000006385. Landlord hereby represents and warrants to Tenant that Landlord
is a duly formed and existing entity qualified to do business in the state in
which the Premises are located, that Landlord has full right and authority to
execute and deliver this Lease, and that each person signing on behalf of
Landlord is authorized to do so.
25.24 Hazardous Materials. The term "Hazardous Materials"
means any substance, material, or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Project. No Tenant Party shall use,
generate, store or Release (defined below), or permit the use, generation,
storage or Release of Hazardous Materials on or about the Premises or the
Project except in a manner and quantity necessary for the ordinary performance
of Tenant's business, and then in compliance with all Laws and in a reasonable
and prudent manner. As used herein, "Release" means depositing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing. If any Tenant Party breaches its obligations
under this Section 25.24, Landlord may immediately take any and all action
reasonably appropriate to remedy the same, including taking all appropriate
action to clean up or remediate any contamination resulting from such Tenant
Party's use, generation, storage or disposal of Hazardous Materials. Tenant
shall defend, indemnify, and hold harmless Landlord and its representatives and
agents from and against any and all claims, demands, liabilities, causes of
action, suits, judgments, damages and expenses (including reasonable attorneys'
fees and cost of clean up and remediation) arising from any Tenant Party's
failure to comply with the provisions of this Section 25.24. This indemnity
provision is intended to allocate responsibility between Landlord and Tenant
under environmental Laws and shall survive termination or expiration of this
Lease.
25.25 List of Exhibits. All exhibits and attachments attached
hereto are incorporated herein by this reference.
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Exhibit A - Outline of Premises
Exhibit B - Description of the Land
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work: AS-IS
Exhibit E - Form of Confirmation of Commencement Date Letter
Exhibit F - Form of Tenant Estoppel Certificate
Exhibit G - Parking
Exhibit H - Renewal Option
25.26 Determination of Charges. Landlord and Tenant agree that
each provision of this Lease for determining charges and amounts payable by
Tenant (including provisions regarding Additional Rent) is commercially
reasonable and, as to each such charge or amount, constitutes a statement of the
amount of the charge or a method by which the charge is to be computed for
purposes of Section 93.012 of the Texas Property Code.
25.27 Prohibited Persons and Transactions. Tenant represents
and warrants that neither Tenant nor any of its affiliates, nor any of their
respective partners, members, shareholders or other equity owners, and none of
their respective employees, officers, directors, representatives or agents is,
nor will they become, a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Assets
Control ("OFAC") of the Department of the Treasury (including those named on
OFAC's Specially Designated Nationals and Blocked Persons List) or under any
statute, executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action and is not and
will not Transfer this Lease to, contract with or otherwise engage in any
dealings or transactions or be otherwise associated with such persons or
entities.
25.28 Waiver of Consumer Rights. Tenant hereby waives all its
rights under the Texas Deceptive Trade Practices - Consumer Protection Act,
Section 17.41 et seq. of the Texas Business and Commerce Code, a law that gives
consumers special rights and protections. After consultation with an attorney of
Tenant's own selection, Tenant voluntarily adopts this waiver.
25.29 Building Renovations. It is specifically understood
and agreed that Landlord has no obligation and has made no promises to alter,
remodel, improve, renovate, repair, or decorate the Premises, the Building, the
Project or any part thereof and that no representations respecting the condition
of the Premises, the Building or the Project have been made by Landlord to
Tenant except as specifically set forth herein. However, Tenant hereby
acknowledges that Landlord may, at its sole discretion, during the Term
renovate, improve, alter, or modify (collectively, the "Renovations") the
Project and the Building. Tenant hereby agrees that such Renovations shall in no
way constitute a constructive eviction of Tenant nor entitle Tenant to any
abatement of Rent. Landlord shall have no responsibility and shall not be liable
to Tenant for any injury to or interference with Tenant's business arising from
the Renovations, nor shall Tenant be entitled to any compensation or damages
from Landlord for loss of the use of the whole or any part of the Premises or of
Tenant's personal property or improvements resulting from the Renovations, or
for any inconvenience or annoyance occasioned by such Renovations.
25.30 Common Area Amenities. In addition to the Premises,
Landlord leases to Tenant, and Tenant leases from Landlord any portions of the
Project that may be, from time to time, designated by Landlord for the use,
enjoyment and benefit of all tenants of the Project and their employees, which
may include, without limitation, a physical fitness center, a deli, and a
conference center (collectively, the "Common Area Amenities"), it being
expressly understood and agreed that Landlord shall not be obligated to provide
any Common Area Amenities, unless otherwise specifically provided elsewhere in
this Lease. As of the date hereof, none of the Common Area Amenities have been
made available to Tenant. From time to time, as each of the Common Area
Amenities are made available to Tenant, if any, the number of rentable square
feet in the Premises shall increase to reflect Tenant's Proportionate Share of
the rentable square feet attributable to the Common Area Amenities that are
available at such time. In furtherance of the foregoing, Landlord may, at its
discretion, require Tenant and its employees, officers, directors, and partners
to execute certain other documents, including, without limitation, a license
agreement and a waiver of claims and indemnity agreement, prior to granting such
individuals access to certain of the Common Area Amenities.
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25.31 UBTI. Landlord and Tenant agree that Rent payable by
Tenant to Landlord shall qualify as "rents from real property" within the
meaning of both Sections 512(b)(3) and 856(d) of the Internal Revenue Code of
1986, as amended (the "Code") and the U.S. Department of Treasury Regulations
promulgated thereunder (the "Regulations"). In the event that Landlord, in its
sole and absolute discretion, determines that there is any risk that all or part
of any Rent shall not qualify as "rents from real property" for the purposes of
Sections 512(b)(3) or 856(d) of the Code and the Regulations promulgated
thereunder, Tenant agrees (1) to cooperate with Landlord by entering into such
amendment or amendments as Landlord deems necessary to qualify all Rents as
"rents from real property," and (2) to permit an assignment of this Lease;
provided, however, that any adjustments required pursuant to this Section 25.31
shall be made so as to produce the equivalent Rent (in economic terms) payable
prior to such adjustment.
25.32 Cross Default. A default or event of default (beyond
any applicable notice, grace and cure periods) under any other written agreement
between Landlord and Tenant shall constitute an Event of Default under this
Lease, and any Event of Default under this Lease shall constitute a default or
event of default under such other written agreement between Landlord and Tenant
(without any obligation to give Tenant any notice or opportunity to cure period
thereunder).
25.33 Reserved Rights. This Lease does not grant any rights to
light or air over or about the Project. Landlord excepts and reserves
exclusively for itself the use of: (1) roofs, (2) telephone, electrical and
janitorial closets, (3) equipment rooms, Building risers or similar areas that
are used by Landlord for the provision of Building services, (4) rights to the
land and improvements below the floor of the Premises, (5) the improvements and
air rights above the ceiling of the Premises, (6) the improvements and air
rights outside the demising walls of the Premises, (7) the areas within the
Premises used for the installation of utility lines and other installations
serving occupants of the Property, and (8) any other areas designated from time
to time by Landlord as service areas of the Project. Tenant shall not have the
right to install or operate any equipment producing radio frequencies,
electrical or electromagnetic output or other signals, noise or emissions in or
from the Project without the prior written consent of Landlord. To the extent
permitted by applicable Law, Landlord reserves the right to restrict and control
the use of such equipment.
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LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION
TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE
PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT
ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD
OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED. NOTHING IN
THIS PARAGRAPH SHALL BE CONSTRUED TO DIMINISH THE OBLIGATIONS OF LANDLORD THAT
ARE EXPRESSLY SET FORTH ELSEWHERE IN THIS LEASE.
This Lease is executed as of the Lease Date (as defined in the Basic Lease
Information).
LANDLORD: CHATEAU PLAZA HOLDINGS, L.P., a Delaware
limited partnership
By: Chateau Plaza Investors LLC, a Delaware
limited liability
company, its general partner
By: JPMorgan Investment Management, Inc., a
Delaware
corporation, its manager
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
TENANT: RED MOUNTAIN RESOURCES, INC., a Florida
corporation
By:
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Name:
------------------------------------------
Title:
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EXHIBIT A
OUTLINE OF PREMISES
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EXHIBIT B
DESCRIPTION OF THE LAND
BEING all of ▇▇▇ ▇, ▇▇▇▇▇ ▇/▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ADDITION, an addition to the
City of Dallas, Dallas County, Texas according to the plat thereof recorded in
Volume 85012, Page 3579 of the Deed Records of Dallas County, Texas and also
being that certain tract described in deed to B.C.I. Associates, a Georgia joint
venture recorded in Volume 87145, Page 3771 of the Deed Records of Dallas
County, Texas and being more particularly described as follows:
BEGINNING at a found PK nail at the intersection of the north right-of-way line
of Fairmont Street, (50 feet wide R.O.W.) and the west right-of-way line of
▇▇▇▇▇▇▇▇ Avenue (63 feet wide R.O.W.) for the most southerly corner of said Lot
1;
THENCE, with the north right of way line of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 39
minutes 49 seconds West, 194.60 feet (North 45 degrees 40 minutes 10 seconds
West, a distance of 194.59 feet - Deed) to a "x" cut in concrete found at the
intersection of the north right-of-way line of Fairmont Street and the east
right-of-way line of ▇▇▇▇▇▇▇ Street (20 foot wide R.O.W.);
THENCE, with the east right-of-way line of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 06
minutes 29 seconds East, 233.95 feet (North 12 degrees 07 minutes 10 seconds
East, a distance of 233.97 feet- Deed) to a "x" cut in concrete set for the most
southwesterly corner of a tract of land described in deed to McKinney Square
Partnership recorded in Volume 79062, Page 2322 of the Deed Records of Dallas
County, Texas;
THENCE, with the south line of said McKinney Square Partnership tract, South 59
degrees 07 minutes 18 seconds East, 181.27 feet (South 59 degrees 07 minutes 45
seconds East, 181.21 feet- Deed) to a 5/8 inch iron rod found in the west
right-of-way line of ▇▇▇▇▇▇▇▇ Avenue;
THENCE, with the west right-of-way line of ▇▇▇▇▇▇▇▇ Avenue, South 13 degrees 32
minutes 40 seconds West, 279.49 feet (279.53- Deed) to the POINT OF BEGINNING;
and containing 43,430 square feet or 0.9970 acre of land, more or less.
And also sometimes described as:
BEING all of ▇▇▇ ▇, ▇▇▇▇▇ ▇/▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ADDITION, an addition to the
City of Dallas, Dallas County, Texas according to the plat thereof recorded in
Volume 85012, Page 3579 of the Deed Records of Dallas County, Texas and also
being that certain tract described in deed to B.C.I. Associates, a Georgia joint
venture recorded in Volume 87145, Page 3771 of the Deed Records of Dallas
County, Texas and being more particularly described as follows:
BEGINNING at a "+" cut in brick at the intersection of the north right-of-way
line of Fairmont Street, (50 feet wide) and the west right-of-way line of
▇▇▇▇▇▇▇▇ Avenue (63 feet wide) for the most southerly corner of said Lot 1;
THENCE, with the north right of way line of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 40
minutes 10 seconds West, a distance of 194.59 feet to a "+" cut in concrete
found at the intersection of the aid north right-of-way line of Fairmont Street
and the east right-of-way line of ▇▇▇▇▇▇▇ Street (20 feet wide);
THENCE, with the east right-of-way line of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 07
minutes 10 seconds East, a distance of 233.97 feet to a "+" cut in concrete set
for the most southwesterly corner of a tract of land described in deed to
McKinney Square Partnership recorded in Volume 79062, Page 2322 of the Deed
Records of Dallas County, Texas;
THENCE, with the south line of said McKinney Square Partnership tract, South 59
degrees 07 minutes 45 seconds East, 181.21 feet to a 5/8 inch iron rod found in
the west right-of-way line of ▇▇▇▇▇▇▇▇ Avenue;
860209V.2 CHA792/16000 B-1 CHATEAU PLAZA
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
THENCE, with the west right-of-way line of ▇▇▇▇▇▇▇▇ Avenue, South 13 degrees 32
minutes 40 seconds West, 279.53 feet to the POINT OF BEGINNING; and containing
43,437 square feet or 0.9972 acre of land, more or less.
Together with abutter's rights of access to and from physically open streets
known as ▇▇▇▇▇▇▇▇ Avenue, Fairmont Street and ▇▇▇▇▇▇▇ Street, also together with
the improvements thereon known locally as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇.
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EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, any parking garage or other parking lot or facility associated
therewith, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building. The halls, passages, exits,
entrances, elevators, stairways, balconies and roof are not for the use of the
general public and Landlord shall, in all cases, retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord, reasonably exercised, shall be prejudicial to the safety, character,
reputation and interests of the Project. No Tenant Party shall go upon the roof
of the Project.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or its agents, employees or invitees, shall
be paid by such tenant.
3. No signs, advertisements or notices (other than those that are not
visible outside the Premises) shall be painted or affixed on or to any windows
or doors or other part of the Building without the prior written consent of
Landlord. No nails, hooks or screws (other than those which are necessary to
hang paintings, prints, pictures, or other similar items on the Premises'
interior walls) shall be driven or inserted in any part of the Building except
by Building maintenance personnel. No curtains or other window treatments shall
be placed between the glass and the Building standard window treatments.
4. Landlord shall provide all door locks at the entry of each tenant's
leased premises, at the cost of such tenant, and no tenant shall place any
additional door locks in its leased premises without Landlord's prior written
consent. Landlord shall furnish to each tenant a reasonable number of keys to
such tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof. Replacement keys shall be provided on a reasonable basis and
at Tenant's cost.
5. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby shall be conducted under Landlord's supervision at such times
and in such a manner as Landlord may reasonably require. Each tenant assumes all
risks of and shall be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
6. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
7. Corridor doors, when not in use, shall be kept closed. Nothing shall be
swept or thrown into the corridors, halls, elevator shafts or stairways. No
bicycles, birds or animals (other than seeing-eye dogs) shall be brought into or
kept in, on or about any tenant's leased premises. No portion of any tenant's
leased premises shall at any time be used or occupied as sleeping or lodging
quarters.
8. Tenant shall cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants shall not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
9. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons approved by Landlord.
10. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
11. No machinery or appliances of any kind (other than normal office
equipment and normal break room appliances) shall be operated by any tenant on
its leased area without Landlord's prior written consent, nor shall any tenant
use or keep in the Building any flammable or explosive fluid or substance (other
than typical office supplies [e.g., photocopier toner] used in compliance with
all Laws).
12. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
13. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
14. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
15. All vehicles are to be currently licensed, in good operating condition,
parked for business purposes having to do with Tenant's business operated in the
Premises, parked within designated parking spaces, one vehicle to each space. No
vehicle shall be parked as a "billboard" vehicle in the parking lot. Any vehicle
parked improperly may be towed away. Tenant, Tenant's agents, employees, vendors
and customers who do not operate or park their vehicles as required shall
subject the vehicle to being towed at the expense of the owner or driver.
Landlord may place a "boot" on the vehicle to immobilize it and may levy a
charge of $50.00 to remove the "boot." Tenant shall indemnify, hold and save
harmless Landlord of any liability arising from the towing or booting of any
vehicles belonging to a Tenant Party.
16. No tenant may enter into phone rooms, electrical rooms, mechanical
rooms, or other service areas of the Building unless accompanied by Landlord or
the Building manager.
17. Tenant will not permit any Tenant Party to bring onto the Project any
handgun, firearm or other weapons of any kind, illegal drugs or, unless
expressly permitted by Landlord in writing, alcoholic beverages.
18. Tenant shall not permit any Tenant Party to smoke in the Premises or
anywhere else on the Project, except in any Landlord-designated smoking area
outside the Building. Tenant shall cooperate with Landlord in enforcing this
prohibition and use its best efforts in supervising each Tenant Party in this
regard.
19. Tenant shall not allow any Tenant Party to use any type of portable
space heater in the Premises or the Building.
20. Only artificial holiday decorations may be placed in the Premises, no
live or cut trees or other real holiday greenery may be maintained in the
Premises or the Building.
21. Tenant shall not park or operate any semi-trucks or semi-trailers in
the parking areas associated with the Building.
22. Tenant shall cooperate fully with Landlord to assure the most effective
operation of the Premises or the Project's heating and air conditioning, and
shall refrain from attempting to adjust any controls, other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors closed
and shall turn off all lights before leaving the Project at the end of the day.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
23. Without the prior written consent of Landlord, Tenant shall not use the
name of the Project or any picture of the Project in connection with, or in
promoting or advertising the business of, Tenant, except Tenant may use the
address of the Project as the address of its business.
24. Tenant shall not exhibit, sell or offer for sale, rent or exchange in
the Premises or at the Project any article, thing or service to the general
public or anyone other than Tenant's employees without the prior written consent
of Landlord.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT D
TENANT FINISH-WORK: AS-IS
Tenant hereby accepts the Premises in their "AS-IS" condition, and Landlord
shall have no obligation to perform any work therein (including demolition of
any improvements existing therein or construction of any tenant finish-work or
other improvements therein), and shall not be obligated to reimburse Tenant or
provide an allowance for any costs related to the demolition or construction of
improvements therein. Before Tenant may occupy the Premises to conduct its
business therein, Tenant shall, at its expense, obtain and deliver to Landlord a
certificate of occupancy from the appropriate governmental authority for the
Premises.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT E
CONFIRMATION OF COMMENCEMENT DATE
_________________, 2011
Red Mountain Resources, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Lease Agreement (the "Lease") dated May 23, 2011, between CHATEAU
PLAZA HOLDINGS, L.P., a Delaware limited partnership
("Landlord"), and RED MOUNTAIN RESOURCES, INC., a Florida
corporation ("Tenant"). Capitalized terms used herein but not
defined shall be given the meanings assigned to them in the
Lease.
Ladies and Gentlemen:
Landlord and Tenant agree as follows:
1. Condition of Premises. Tenant has accepted possession of the Premises
pursuant to the Lease. Any improvements required by the terms of the Lease to be
made by Landlord have been completed to the full and complete satisfaction of
Tenant in all respects, and Landlord has fulfilled all of its duties under the
Lease with respect to such initial tenant improvements. Furthermore, Tenant
acknowledges that the Premises are suitable for the Permitted Use.
2. Commencement Date. The Commencement Date of the Lease is
_______________, 2011.
3. Expiration Date. The Term is scheduled to expire on September 30, 2016,
which is the last day of the 64th full calendar month following the Commencement
Date.
4. Contact Person. Tenant's contact person in the Premises is:
Red Mountain Resources, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
-------------------------------
Telephone: ___.___.____
Facsimile: ___.___.____
5. Ratification. Tenant hereby ratifies and confirms its obligations under
the Lease, and represents and warrants to Landlord that it has no defenses
thereto. Additionally, Tenant further confirms and ratifies that, as of the date
hereof, (a) the Lease is and remains in good standing and in full force and
effect, and (b) Tenant has no claims, counterclaims, set-offs or defenses
against Landlord arising out of the Lease or in any way relating thereto or
arising out of any other transaction between Landlord and Tenant.
6. Binding Effect; Governing Law. Except as modified hereby, the Lease
shall remain in full effect and this letter shall be binding upon Landlord and
Tenant and their respective successors and assigns. If any inconsistency exists
or arises between the terms of this letter and the terms of the Lease, the terms
of this letter shall prevail. This letter shall be governed by the laws of the
state in which the Premises are located.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
Please indicate your agreement to the above matters by signing this letter
in the space indicated below and returning an executed original to us.
Sincerely,
CHATEAU PLAZA HOLDINGS, L.P., a Delaware
limited partnership
By: Chateau Plaza Investors LLC, Delaware
limited liability
company, its general partner
By: JPMorgan Investment Management, Inc., a
Delaware
corporation, its manager, on behalf of
Landlord
By:
Name:
Title:
Agreed and accepted:
RED MOUNTAIN RESOURCES, INC., a
Florida corporation
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT F
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below) between
_______________________, a ___________________, as Landlord, and the undersigned
as Tenant, for the Premises on the __________ floor(s) of the office building
located at _____________________, __________ and commonly known as
_______________________, and hereby certifies as follows:
1. The Lease consists of the original Lease Agreement dated as of
__________________, 20___, between Tenant and Landlord[`s
predecessor-in-interest] and the following amendments or modifications thereto
(if none, please state "none"):
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--------------------------------------------------------------------------------
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The documents listed above are herein collectively referred to as the "Lease"
and represent the entire agreement between the parties with respect to the
Premises. All capitalized terms used herein but not defined shall be given the
meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Section 1 above.
3. The Term commenced on _______________________, 20___, and the Term
expires, excluding any renewal options, on _______________________, 20___, and
Tenant has no option to purchase all or any part of the Premises or the Building
or, except as expressly set forth in the Lease, any option to terminate or
cancel the Lease.
4. Tenant currently occupies the Premises described in the Lease and Tenant
has not transferred, assigned, or sublet any portion of the Premises nor entered
into any license or concession agreements with respect thereto except as follows
(if none, please state "none"):
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--------------------------------------------------------------------------------
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5. All monthly installments of Basic Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ______________. The current monthly installment of Basic Rent is
$___________.
6. All conditions of the Lease to be performed by Landlord necessary to the
enforceability of the Lease have been satisfied and Landlord is not in default
thereunder. In addition, Tenant has not delivered any notice to Landlord
regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or offsets, or, to
Tenant's knowledge, claims or any basis for a claim, that Tenant has against
Landlord and no event has occurred and no condition exists, which, with the
giving of notice or the passage of time, or both, will constitute a default
under the Lease.
8. No rental has been paid more than 30 days in advance and no security
deposit has been delivered to Landlord except as provided in the Lease.
9. If Tenant is a corporation, partnership or other business entity, each
individual executing this Estoppel Certificate on behalf of Tenant hereby
represents and warrants that Tenant is and will remain during the Term a duly
formed and existing entity qualified to do business in the state in which the
Premises are located and
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
that Tenant has full right and authority to execute and deliver this Estoppel
Certificate and that each person signing on behalf of Tenant is authorized to do
so.
10. There are no actions pending against Tenant under any bankruptcy or
similar laws of the United States or any state.
11. Other than in compliance with all applicable laws and incidental to the
ordinary course of the use of the Premises, Tenant has not used or stored any
hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under the Lease
has been completed in accordance with the Lease and has been accepted by Tenant
and all reimbursements and allowances due to Tenant under the Lease in
connection with any tenant improvement work have been paid in full.
Tenant acknowledges that this Estoppel Certificate may be delivered to
Landlord, Landlord's Mortgagee or to a prospective mortgagee or prospective
purchaser, and their respective successors and assigns, and acknowledges that
Landlord, Landlord's Mortgagee and/or such prospective mortgagee or prospective
purchaser will be relying upon the statements contained herein in disbursing
loan advances or making a new loan or acquiring the property of which the
Premises are a part and that receipt by it of this certificate is a condition of
disbursing loan advances or making such loan or acquiring such property.
Executed as of _______________________, 20_.
TENANT: ______________________________, a ___________________
By:
Name:
Title:
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT G
PARKING
Tenant shall be provided a total of 12 parking access cards permitting
Tenant to use up to 10 unreserved parking spaces, and up to two reserved parking
spaces, in the parking facilities associated with the Building (the "Parking
Area") subject to such terms, conditions and regulations as are from time to
time applicable to patrons of the Parking Area. Regardless of whether Tenant
elects to use such parking spaces, Tenant shall pay to Landlord,
contemporaneously with the payment of Basic Rent, parking rent (plus all
applicable taxes) during the initial Term equal to the greater of (a) the rate
then established by Landlord for reserved and unreserved parking spaces, as
applicable, in the Parking Area or (b) the following rates for each such parking
access card:
Monthly Rent per
Monthly Rent per Unreserved Reserved Parking Access
Parking Access Card Card
$45.00 $75.00
Notwithstanding the foregoing, Tenant's obligation to pay the above rates
for such reserved and unreserved parking spaces shall be abated from June 1,
2011 through September 30, 2011. Commencing on October 1, 2011, Tenant shall pay
the above rates for such parking spaces. Further, Tenant has elected to permit
one of its allocated unreserved parking spaces to be recaptured by Landlord at
any time during the Term by providing Tenant written notice thereof. In
consideration of such election, such parking space shall be abated during the
initial Term.
Tenant shall at all times comply with all Laws respecting the use of the
Parking Area. Landlord reserves the right to adopt, modify, and enforce
reasonable rules and regulations governing the use of the Parking Area from time
to time including designation of assigned parking spaces, requiring use of any
key-card, sticker, or other identification or entrance systems and charging a
fee for replacement of any such key-card sticker or other item used in
connection with any such system and hours of operations. Landlord may refuse to
permit any person who violates such rules and regulations to park in the Parking
Area, and any violation of the rules and regulations shall subject the car to
removal from the Parking Area.
Tenant may validate visitor parking by such method or methods as Landlord
may approve, at the validation rate from time to time generally applicable to
visitor parking. Unless specified to the contrary above, the parking spaces
provided hereunder shall be provided on an unreserved, "first-come, first
served" basis. Tenant acknowledges that Landlord has arranged or may arrange for
the Parking Area to be operated by an independent contractor, not affiliated
with Landlord.
All motor vehicles (including all contents thereof) shall be parked in the
Parking Area at the sole risk of Tenant and each other Tenant Party, it being
expressly agreed and understood Landlord has no duty to insure any of said motor
vehicles (including the contents thereof), and Landlord is not responsible for
the protection and security of such vehicles. If, for any reason, Landlord is
unable to provide all or any portion of the parking spaces to which Tenant is
entitled hereunder, then Tenant's obligation to pay for such parking spaces
shall be abated for so long as Tenant does not have the use thereof; this
abatement shall be in full settlement of all claims that Tenant might otherwise
have against Landlord because of Landlord's failure or inability to provide
Tenant with such parking spaces. Landlord shall not be responsible for enforcing
Tenant's parking rights against any third parties. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN THIS LEASE, LANDLORD SHALL HAVE NO LIABILITY
WHATSOEVER FOR ANY PROPERTY DAMAGE OR LOSS WHICH MIGHT OCCUR ON THE PARKING AREA
OR AS A RESULT OF OR IN CONNECTION WITH THE PARKING OF MOTOR VEHICLES IN ANY OF
THE PARKING SPACES.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT H
RENEWAL OPTION
Tenant may renew this Lease for one additional period of three years, by
delivering written notice of the exercise thereof to Landlord not earlier than
nine months nor later than six months before the expiration of the Term. The
Basic Rent payable for each month during such extended Term shall be the
prevailing rental rate (the "Prevailing Rental Rate"), at the commencement of
such extended Term, for renewals of comparable space in the Building of
equivalent quality, size, utility and location, with the length of the extended
Term and the credit standing of Tenant to be taken into account, as determined
in Landlord's reasonable but sole discretion. Within 30 days after receipt of
Tenant's notice to renew, Landlord shall deliver to Tenant written notice of the
Prevailing Rental Rate and shall advise Tenant of the required adjustment to
Basic Rent, if any, and the other terms and conditions offered. Tenant shall,
within five days after receipt of Landlord's notice, notify Landlord in writing
whether Tenant accepts or rejects Landlord's determination of the Prevailing
Rental Rate. If Tenant timely notifies Landlord that Tenant accepts Landlord's
determination of the Prevailing Rental Rate, then, on or before the commencement
date of the extended Term, Landlord and Tenant shall execute an amendment to
this Lease extending the Term on the same terms and conditions provided in this
Lease, except as follows:
(a) Basic Rent shall be adjusted to the Prevailing Rental Rate;
(b) Tenant shall have no further renewal option unless expressly
granted by Landlord in writing;
(c) Landlord shall lease to Tenant the Premises in their then-current
condition, and Landlord shall not provide to Tenant any allowances (e.g.,
moving allowance, construction allowance, and the like) or other tenant
inducements; provided, however, Landlord shall include a market finish out
allowance, as reasonably determined by Landlord; and
(d) Tenant shall pay for the parking spaces which it is entitled to
use at the rates from time to time charged to patrons of the Parking Area
and/or any other parking area associated with the Building during the
extended Term (plus all applicable taxes).
If Tenant rejects Landlord's determination of the Prevailing Rental Rate,
or fails to timely notify Landlord in writing that Tenant accepts or rejects
Landlord's determination of the Prevailing Rental Rate, time being of the
essence with respect thereto, Tenant's rights under this Exhibit shall terminate
and Tenant shall have no right to renew this Lease.
Tenant's rights under this Exhibit shall terminate, at Landlord's option,
if (i) an Event of Default exists as of the date of Tenant's exercise of its
rights under this Exhibit or as of the renewal commencement date of the
applicable extended Term, (ii) this Lease or Tenant's right to possession of any
of the Premises is terminated, (iii) Tenant assigns its interest in this Lease
or sublets any portion of the Premises, (iv) Tenant ceases to lease from
Landlord and to occupy at least 4,383 rentable square feet of space, (v)
Landlord determines, in its sole but reasonable discretion, that Tenant's
financial condition or creditworthiness has materially deteriorated since the
date of this Lease, or (vi) Tenant fails to timely exercise its option under
this Exhibit, time being of the essence with respect to Tenant's exercise
thereof.
860209V.2 CHA792/16000 ▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ AND COMPANY
ALT+CO
▇▇▇▇▇▇▇▇▇▇ AND COMPANY
TRANSACTION SUMMARY
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SECTION I: DOCUMENT DESCRIPTION
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DOCUMENT TYPE: Lease Agreement DOCUMENT DATE: May 23, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ a Delaware limited
partnership
TENANT: Red Mountain Resources, Inc., TRANSACTION TYPE: New Lease
a Florida corporation
GUARANTOR: N/A PREMISES DESCRIPTION: Spec Suite
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SECTION II: SPACE PARAMETERS
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SUITE # 900 COMMENCEMENT DATE: June 1, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
FEET 4,383 TERM: 64 months
PROPORTIONATE
SHARE 2.55% LEASE EXPIRATION: September 30,
2016
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SECTION III: ECONOMIC PARAMETERS
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TRANSACTION CONCESSIONS TO TENANT
SUPPLEMENTAL ALLOWANCE: $0.00 (Landlord spent $33.pp per rsf on the spec suite
finish-out)
TRANSACTION COMMITTMENTS MADE BY TENANT
BASE RENTAL
6/1/11 9/30/12 4 $0.00 $0.00 $0.00 $0.00 TOTAL RENT
10/1/11 9/30/12 12 $24.50 $107,383.50 $8,948.63 $107,383.50 $558,832.50
10/1/12 9/30/13 12 $25.00 $109,575.00 $9,131.25 $109,575.00
10/1/13 9/30/14 12 $25.50 $111,766.50 $9,313.88 $111,766.50
10/1/14 9/30/15 12 $26.00 $11,3958.00 $9,496.50 $113,958.00
10/1/15 9/30/16 12 $26.50 $11,6149.50 $9,679.13 $116,149.50
AVG ANNUAL RENTAL RATE: $25.50 per RSF
AVG EFF RENTAL RATE: $23.91 per RSF
ESCALATION: 2011 Base Year; controllable expensed shall be capped at 8%
cumulative/compounded
ADDITIONAL RENT: Plus E deal
PARKING: Charges abated for the first four months of the lease; Tenant
pays regardless of utilization
RESERVED SPACES: 2 spaces at $75.00/space/month
UNRESERVED SPACES: 10 spaces at $45.00/space/month
SECURITY DEPOSIT: $9,679.13
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SECTION IV: SPECIAL PARAMETERS
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RENEWAL OPTION: One additional period of three years 6 to 9 mos written notice
required - at prevailing rate in Building as determined by ALT+CO TS: _____________
Landlord
ALT+CO EXEC. ___________
SUBSTITUTION: Yes
HOLDING OVER: The greater of 1) 150% for the first 60 days, 200% thereafter, or
2) 125% of the prevailing rate
BUILDING AMENITIES: Conference Center on-site; half-day is $125 and full-day is
$250 (non-contractual)
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SECTION V: CONTRACTS & LEGAL
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NOTICE CONTACT: Attn. Property Manger with a copy to: LEGAL REVIEW: No
FIRM: N/A
ADDRESS: Chateau Plaza Holdings, L.P. Chateau Plaza Holdings, L.P. N/A
c/o Stream Dallas Office, LP c/o JPMorgan Asset Management
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Office 214.855.5120
Fax ▇▇▇.▇▇▇.▇▇▇▇